Patent Law and Its Features – Cyber Law Unit 1

Features of Patent Law (Indian Patent Act)

The history of inventions begin with the invention of wheels but patents ( An exclusive right to owner to protect his invention and prohibits others from using it) were granted in the 15^th Century only. Initially patents were granted for nay common research and inventions it resulted in huge dissatisfaction amongst people and finally resulted in the formation of a legal procedure to protect invention and award it to deserving candidates, it is known as Paten Law or Patent Act. This law declared all the non-inventions illegal.The Patent Law was first introduced by Atate of Venice in 1474.  The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled “An Act to promote the progress of useful Arts.” The first patent was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate).

The history of Patent law in India traces back to 1911 when the Indian Patents and Designs Act, 1911 was passed. The present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. The Patents Act, 1970 was again modified by the Patents (Amendment) Act, 2005and it was extended to all fields of technology including food, drugs, chemicals and micro organisms. After the amendment, the provisions relating to Exclusive Marketing Rights (EMRs) have been cancelled, and a provision for enabling grant of compulsory license has been introduced. The provisions concerning to pre-grant and post-grant opposition have been also introduced.

Following are the salient features of Patent Law

• Both product and process patent provided
  • The Law permits to patent any invention that is new,useful to the society, has commercial application and inventive step. The patent is granted for product as well as process. Roche India Pvt Ltd, the Indian arm of Swiss drugmaker F Hoffmann La Roche, got its first Patent in India for its biotech drug Pegasys (Peinterferon apha-2a). Patent for process was provided to “A process of making rare earth doped optical fibre”
  • A mere admixture, method of agriculture or horticulture and plants and animals can not be patented under this Act

• Requirement for application
  • An application for patent should contain complete description of the invention(also known as patent specification).
• Examination on request :
  • After filing the application for a patent, a request for examination is essential to be made for examination of the application by the Indian Patent Office.

• Both pre-grant and post-grant opposition :
  • The patent can be opposed by any person within six months from the publication of the patent application. This is known as Pre grant opposition. The invention can be challenged even after it gets patent, but the opposition should come within 12 months from the publication of the grant of the patent.
• Term of Patent
  • The term of patent in every category in India is twenty years from the date of filing the patent application. In case of applications filed through the Patent Cooperative Treaty (PCT), the term of twenty years begins from the international filing date.
• Renewal Fee:
  • The patentee has to pay renewal fee to keep the patent alive.
• Patent of Biological Material
  • If the invention uses a biological material which is new, it is essential to deposit the same in the International Depository Authority (“IDA”) before filing of the application in India in order to supplement the description. Publication of applications after 18 months with facility for early publication.
• Rights conferred on the Patentee:
  • The act gives exclusive rights to the patentee to manufacture, market, sell, assign and license his patent and at the same time prohibit others from doing so for a limited period of time. It also provides reliefs against infringements in the form of injunction and compensations.
• Compulsory licensing:
  • The act also ensures that patentee doesn’t misuse his rights and also that patents do not prevent the protection of public health and nutrition, by the way of Compulsory Licensing. Under section 84 of Indian Patent Act, compulsory licenses are granted
    • To prevent the misuse of patent as monopoly
    • To Make provisions for commercial exploitation of the patent(If  government feels that patent is not available to public at an affordable price, or reasonable requirements of public have not been satisfied.
    • To take care of public health in India.
  • Assignment
    • The patentee can assign his rights to any other person. Assignment is available in three form -legal assignment, equitable assignment and mortgages