Things to know about Patent in India: Right of the Inventor

The term “patent” comes from the Latin term “patere,” which means “to lay open,” or “to make available for public inspection.

Patent, an exclusive right provided by the government to the creator to restrict others from using, manufacturing, or selling an invention for a specific period. A patent is also available for further development of their previous invention.

The primary goal of enacting patent laws in India is to encourage inventors to contribute more in their field by providing exclusive rights to their inventions. In contemporary words, a patent is an inventor’s guaranteed right to develop any novel, useful, quasi-process, the machine, object of manufacturing, or composition of matter.

Background of Patents

In India, Act VI of 1856 was the first step in the patent procedure. The primary objective of the Act was to foster the production of new and helpful goods by encouraging inventors to share their ideas and make them available to the general population.

Act IX of 1857 revoked the Act since it got adopted without the assent of the British Crown. ​​Act XV of 1859 established new legislation for the granting of “special privileges.”

This bill differed from the preceding law in that it granted exclusive benefits to valuable inventions and extended the priority period from six to twelve months. Importers were excluded from the Act’s definition of an inventor. Later, in 1872, 1883, and 1888, the Act got amended three times.

The Indian Patent Act of 1911 repealed all previous legislation. The Patent Act, 1970, along with the Patent Rules of 1972, went into effect on April 20, 1972, and replaced the Indian Patent and Design Act of 1911.

Justice Ann’s Ayyangar Committee, led by Rajagopala Iyengar, heavily influenced the Patent Act. One of the proposals was to enable process patents for inventions involving medicines, medications, food, and chemicals.

Again, the Patents Act of 1970 was modified in 2005 by the Patents (Amendment) Act, which extended product patents in all technology fields, including food, medicine, chemicals, and microbes.

The Act removed provisions on exclusive marketing rights (EMR) and added a clause allowing the issue of compulsory licenses due to the modification. Pre-grant and anti-post-grant protest provisions got included.

Procedure for Grant of a Patent in India

How to patent an idea in India?

• ​​Invention disclosure
• Patentability search
• The decision to apply for a patent
• Patent drafting
• Filing the patent application
• Request for examination
• Responding to objections (if any)
• Grant of patent
• Renewal of your patent

Indian Patent rules are:

• Within 48 months after the application’s priority date or the date of applying the patent grant application, an examination request must be submitted with the Indian Patent Office.
• Following the initial examination report issuance, the applicant gets the chance to respond to the objections mentioned in the report. The applicant receives six months from the date of the first examination report to comply with the requirements, which can get extended for another three months at the applicant’s request.
• If the applicant cannot comply with the requirements of the first examination report within the specified time frame of 9 months, the application is considered abandoned. Once all objections get resolved, and after meeting all conditions, the patent is issued and published in the Patent Office Journal.

Filing of Applicant for Grant of Patent in India by Foreigners

Because India is a party to both the Paris Convention for the Protection of Industrial Property (1883) and the Patent Cooperation Treaty (PCT) (1970), A foreign company can file a patent application in India under either treaty.

Suppose a patent application for an invention gets filed in a Convention Country. In that case, the applicant, or the applicant’s legal representative or assignee, can file an equivalent patent application in India within 12 months of the date the basic application was submitted in the Convention Country that is the home country. The priority date, in this case, is the day on which the basic application was submitted.

Terms of Patent

How long do patents usually last in india?

Patent law in India states that every patent in India has a 20-year term, whether the application gets filed with a provisional or complete specification. The 20 years period commences from the international filing date for applications submitted under the Patent Cooperation Treaty (PCT).

Restoration of Patent

A request for patent restoration must be made within eighteen months of the patent’s expiration date, along with the required fee. The item gets published in the official journal after receiving the request for further processing.

Rights Granted by a Patent

If the product gets a patent, the patentee has the right to restrict anyone in India from manufacturing, using, offering for sale, selling, or importing the patented product.

If the patent is for a technique, the patentee has the right to prevent others from using the method, utilising the product produced directly through the method, offering for sale, selling, or importing the product obtained directly through the technique in India.

It’s vital to know “What isn’t Patentable in India” before filing a patent application in India. Any invention that is

• frivolous,
• obvious,
• in violation of well-established natural laws,
• in violation of law,
• morality,
• harmful to public health,
• simply by discovering a scientific theory,
• the formulation of a theoretical concept,
• simply discovering a new property or use for existing material, procedure, gadget, or apparatus
• Patentable innovations in India include
• a simple arrangement, rearrangement, or duplication of known technologies,
• a technique of agriculture or horticulture, and
• inventions about atomic energy

Compulsory Licensing

One of the essential elements of the Indian Patents Act, 1970 is the compulsory licencing subject to defined requirements. Any interested party may request to the Controller of Patents for a compulsory licence of a patent at any time following the patent’s sealing date, which is three years. But for it, it’s essential to meet the following requirements:

• the public’s reasonable needs for the patented innovation have not been met;
• the public’s reasonable needs for the patented innovation have not been
• The public’s reasonable needs for the patented innovation have not been met; the patented invention is not available to the public at a fair price, or the patented invention is not being used in the Indian territory.

It’s also worth noting that anybody can file a compulsory licence application, even if he already has a licence under the patent.

Assume the Controller finds that the legitimate needs of the public for the patented innovation are not satisfied or that the patented invention not get offered to the public at a reasonable price. In that case, he may order the patentee to issue a licence on any conditions he sees suitable. However, the Controller of Patents must consider the following considerations before issuing a compulsory licence:

• The nature of innovation;
• The time length that has transpired after the patent was issued;
• The steps are done thus far by the patentee or licensee to exploit the innovation fully;
• The applicant’s capacity to use the innovation for the benefit of the public;
• The applicant’s capacity to risk supplying funds and working the innovation if the application for a compulsory licence is accepted.
• If the applicant has made a good faith effort to obtain a licence from the patentee on reasonable terms and conditions;
• a national emergency or other situation requiring immediate action;
• Non-commercial public usage;
• Establishment of a foundation for the patentee’s anti-competitive activities

Infringement of Patent in India

The infringing patent in India actions can only begin after granting the patent. However, they can contain a claim that dates back to the date of publication of the patent application.

A patent infringement occurs when a patented invention is made, imported, used, offered for sale, or sold without permission within India. Only a civil action can get filed in a court of law under the (Indian) Patents Act, 1970.

Furthermore, an infringement complaint can be fought on various grounds, including the grounds that a patent cannot get awarded in India, and revocation of the patent can be sought based on such a defence.

Licensing and Assignment of Patent

It is permissible to assign a patent or a portion of a patent and mortgage, licence, or establish any other kind of interest in a patent. An assignment of a patent is only valid if it is written down.

The agreement gets reduced to a document containing all the terms and circumstances regulating the parties’ rights and responsibilities. The transferee must file a registration application in the proper format.

Case Study Involving Patent in India

Case studies of rejected patents as per Section 3 of the Indian patent act

Section 3 of the Indian Patent Act describes non-patentable inventions.

Section 3(a). An invention that is frivolous or which claims anything contrary to well established natural laws

Consider a computer that delivers more than 100% performance as an example. A first-generation perpetual motion machine that promised to generate work without the need for energy, it violated the rule of thermodynamics (the law of conservation of energy, which states that energy cannot be created or destroyed). It just transitions from one state to another.

Case 1: Patent application entitled “Gravity wheel–a perpetual motion machine.”

This innovation claimed to create a powder delivery wheel, which is a gravity-driven perpetual motion machine. It stated that this machine could never get halted by anything other than human intervention.

The indicated machine was an infinitely sizeable stationary engine capable of continuous power generation from gravity force, which could be found on every planet. The patent got abandoned under Section 21(1) due to its performance violating the law of thermodynamics.

This Table contains information on Case 1’s patent application.

Patent application detail for case 1 entitled “Gravy wheel – a perpetual motion machine.”

Section 3(b). An innovation whose primary or planned use or commercial exploitation might be in violation of public order or morals, or could have significant consequences for human, animal, or plant life, health, or the environment;

For example, the Oncomouse, genetically engineered to develop cancer for medical research purposes, is not patentable since cancer may get transferred to the general population.

Animal model developers argue that animal models should be patentable since 1. microorganisms are now patentable, 2. animal models are incredibly similar to human illness and so contribute considerably to the drug discovery process, and 3. patents give a way of recompense for millions of dollars invested in research, resulting in further research and, eventually, improved therapies. However, patent applications using animal models get denied on the grounds of morality and repeatability.

Case 2: Patent application entitled “Electro-Mechanical Sexual Stimulation Device.”

This patent is about a sexually stimulating vibrator and its intended use or commercial exploitation, both of which are against public order or morals. Thus it got denied based on ground Section 3. (b).

Although they relate to the same category of claims, claims 1 and 17 have been written separately. As a result, under Section 10(5) of the Act, the aforementioned assertions lack clarity and conciseness.

The claims do not meet the requirements of u/s 2(1)(j) of the Patent Act for novelty and/or inventive steps. The current invention’s issue is that its identifying traits are dependent on relative proportions, i.e., on the anatomy of the users.

The study also noted patent drafting mistakes in the abstract and design.

The applicant or agent did not present for the hearing on the specified day, nor did they provide a written response to the hearing notice.

3rd section (c). The discovery of a scientific concept, the development of an abstract theory, or the finding of any living or non-living substance in nature;

Examples include Newton’s Laws, the discovery of microorganisms, the Raman effect, and the Theory of Relativity.

Conclusion

Thanks to patents, individuals and businesses may get a lot of bang for their buck when developing new technology. In the quest for how, where, and when to patent, an intelligent strategy sat matches corporate interests should get used to deploying the technology with a wide variety of alternatives.

For example, by focusing on international concerns and rules in certain countries, a firm might save money and strengthen its rights through patents.