An Overview Of Patent Protection In India - A Study
Author: LawSphereX
Category: Intellectual Property
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AN OVERVIEW OF PATENT PROTECTION IN INDIA: A
STUDY
Soumik Ash, Assistant Professor, MIES RM Law College (Affiliated to Vidyasagar University), Sonarpur, North 24 Parganas, West Bengal Prof (Dr.) Jayanta Kumar Saha, HOD, Department of Law, Bankura University, Purandarpur, West Bengal 722155
ABSTRACT
A patent is an internationally recognized term denoting a monopoly or
exclusive right awarded by the government in the name of an inventor concerning his invention, for a particular product, which bars others for a set period from performing specified acts related to the invention. If a person satisfies the requirements established by the government of a given country, they are awarded this right. As a result, the innovation now belongs exclusively to the patentee. The Patents Act, 1970, was amended a number of times. Patents (Amendment) Act, 1999 enhances the filing of applications for product patents in the areas of pharmaceuticals, drugs, and agrochemicals. The objective of the Patents (Amendment) Act, 2002 is to bring India's patent regime under the TRIPS convention. The Patents (Amendment) Act, 2005 aims to bring product patent. Every invention in commodities may be the subject of a patent.
A new and useful art, process, method, machine, device, other product, or substance generated through manufacture is considered to be an invention, as is any new and practical improvement to any of these. In this Article, an attempt has been made by the author to go through the concept of intellectual property, the idea of patent, relation of patent with public health and TRIPS, History of the Patent Law inside & outside India, evaluation of various Acts & their amendments in India. Keywords: Intellectual Property, Patent,
TRIPS,
Patent Law, Pharmaceutical Patents
An Overview of Patent Protection in India: A Study
1. Introduction:-
Property is the absolute and dictatorial sovereignty that one man fully excludes the right of any individual in the world as stated by William Blackstone. 1 Blackstone listed three types of property rights: the freedom to use, the enjoyment of, and the right to dispose of acquisitions. 2 The innovation now entirely belongs to the patentee as a result. The law of patents in India is regulated by the Patents Act, 1970. The Act was changed thrice by the Patents (Amendment) Act, 1999, the Patents (Amendment) Act, 2002 & the Patents (Amendment) Act, 2005. Every invention in commodities may be the subject of a patent. An art, process, method, machine, device, other product, or substance generated through an innovative or unique method is the subject matter of patent. Concept of Intellectual Property: - The subject matter of Intellectual property is also included in the definition of property.
The term "intellectual property" deals with the creations of the intellect, such inventions, literary and creative works, and designs that are protected by law. The protection enables creators to benefit financially from their creations. Legal safeguards exist for intellectual property. Intellectual property is also referred to as intangible property in patent & other sector. Intellectual property is the product of creativity, novelty, and innovation. Knowledge is one of the important factors which are driving forces in the new era. 3 Patents, copyrights, trademarks, industrial designs, geographical indications, traditional knowledge, etc. are recognized intellectual property rights. WIPO has also defined intellectual property as works of the intellectual & innovative mind, including works of literature and art; inventions, names, logos, and pictures used in commercial activity.
Intellectual property can be divided into two main categories. On one hand, we have industrial property, which includes patents for inventions, trademarks, industrial designs, and geographical indicators. On the other hand, there’s copyright, which encompasses literary works—like books, poems, and plays—as well as Carol M.
Rose, ‘Canons of Property Talk, or, Blackstone's Anxiety’ available at https://pdfs.semanticscholar.org/e27e/12c867aec6dbb0164f8fdb9d96b5e6f0a4e1.pdf,
2 W. Blackstone, “Commentaries on the Laws of England”, Vol.1(London: Thomas Egg.1830) p.138.
3 L.F. Vinding Kruse, “The Rights of Property”, Vol.1, Trans. by P.T. Feterspiel (London, OUP), 1939, pp.107- 108.
motion pictures, music, creative creations such as sculptures, paintings, photographs, and architectural designs. Revisiting the idea of Patent Patent is an important example of intellectual property. The term ‘patent’ will be explained as a new form of invention, in the format of product patent or process patent that provides a novel idea to solve a problem or a newly innovative technical solution. Patent also provides an exclusive right. In accordance with the UN Convention, a patent can also be defined as a legally enforceable right that a government grants to an inventor. The inherent objective behind granting of patents is to encourage innovators to advance the state of technology. The product for which the patent has be applied for, must be legally useful and beneficial. A patent guarantees patent owners exclusive right to use their product.
Earlier, patents were generally transfers the existing technologies from technologically advanced countries. Presently, process of working of patents had been changing in a rapid way. Patents are being recognized as the mode to prevent transfer of technology from the advanced countries. Transfer of knowledge is visualized as ‘piracy’. 4 Patents provide protection for a defined timeframe, typically lasting 20 years. They acknowledge creativity and offer the potential for financial rewards for valuable discoveries, acting as a motivator for individuals. An innovation cannot be developed, used, shared, or sold for profit without the approval of the patent owner. Most legal systems empower courts to intervene in cases of patent infringement, making courts the primary venue for enforcing patent rights.
While patents don’t cover books, films, or artistic creations, copyright law steps in to safeguard these forms of expression. Intellectual property law, a more general area of law that also includes trademark and copyright law, incorporates patent law as one of its subfields. The concepts of novelty and inventive step (or lack of obviousness) are central to patent law. Patent, Public Health and TRIPS Since right to health is one of the important features of the right to life, for that reason, international and state policies which have the impact on people's health should be of prime importance and demands regular supervision.
4 Vandana Shiva, ‘Patents – Myths & Reality, Penguin Books, (2000) P.P.14-15
This observation explains the concerns, expressed about the effect of global IPR protection policy on the national development plans and its consequent effect on public health. The inclusion of the pharmaceutical industry within the global IPR protection 5regime signifies nothing more than the introduction of formidable obstacles to the ability of individual states, particularly developing ones, to provide their populations with adequate health care, which includes affordable access to medications. India was not a signatory to the TRIPS regime, at the time of formation of TRIPS convention. Since India has to comply with the TRIPS regime, India needs to remove some parameters, from the purview of Patent Act, 1970. The process patent will be allowed only, for food & pharmaceutical products, with an objective to match its patent laws with the TRIPS regime.
Since India has a variety of industrial & technological source, a highly educational and skillful labour force preferably in certain sectors, with some unique research strength. 6 It has been rightly stated that a weak patent system may be a destructive factor for the extension of India's pharmaceutical sector in phase one, when per capita GDP was comparatively low. But whereas a strong patent system can enhance the future growth and development an industry". Although the fact that it is generally accepted that the TRIPs Agreement is not a fully closed code. It has provided some space needed to cater public health issues. The complexities of the matters covered by TRIPs and the potential for multidimensional of its provisions make it challenging to understand the space.
However, affluent nations and multinational corporations have already exerted pressure on poor nations' attempts to use "space for legitimising their public health policies. Thus, complaints had been lodged before dispute settlement body of WTO against the misuse of rules of TRIPS Convention by the WTO member countries. Recommendations of Justice (Dr. ) Bakshi Tek Chand Committee In 1949, following India's independence, a committee led by Justice (Dr. ) Bakshi Tek Chand was formed to evaluate the 1911 Patent Act. The committee's interim report, released on August 4, 1949, aimed to curb the misuse of patent rights, emphasizing that essential items like food, 5 BhagirathLal Da, “The World Trade Organization, A guide to the Frame Work of the International Trade”, PP. 355-393.
6Aravind Subramanian, ‘India as User and Creator of Intellectual Property; The Challenges Post Doha,’ The World Bank Legal Review, vol. 1, Kluwer International, P. 191.
medicine, and medical devices should be accessible to the public at minimal costs. Their final report in 1950 recommended revisions to the 1911 Act, introducing measures such as compulsory licensing and provisions for mandatory licensing of several critical categories, including pharmaceuticals and surgical instruments. Inspired by these recommendations, the government presented Bill 59 of 1953 in Parliament; however, the bill ultimately failed to pass and was consigned to expiration. Recommendations of Justice Ayyangar Committee The committee's proposal led the government to introduce Bill 59 of 1953 in parliament, which ultimately lapsed without further action. In 1957, a new committee chaired by Justice N. Rajagopala Ayyangar was formed to reevaluate the patent law.
Justice Ayyangar recognized the need to adapt the patent system to better suit the nation's economic conditions and technological progress while addressing potential abuses of patent monopolies. He recommended maintaining the patent system with modifications, including a clear definition of patentable inventions and the exclusion of those that could hinder research, industrial growth, or negatively affect public health and welfare. History of the Patent Law outside India The first patent law was passed by the city of Venice in 1474. The Venetian statute established the first regular system for granting patents for “new and ingenious devices. ” To be patentable, the device had to be new to Venice, made in Venice, registered with a General Welfare Board, and “reduced to perfection. ” A 10-year period of protection was granted.
The penalty for infringement, copying the device without permission, was a fine of 100 ducats and the destruction of the infringing device. 7 The Law of Monopolies was adopted in England in 1624. A fourteen-year patent was available under the 1624 Statute of Monopolies for "the sole producing or working of any manner of new manufacturing within this realm to the first and true manufacturer. " Patent agents routinely sought for patents under their own names on behalf of inventors from abroad since the phrase "first and true inventor" was interpreted to encompass importers of inventions made abroad.
7 Michael Wogan, ‘Introduction to Patent Law,’ available at http://crab.rutgers. edu/~mwogan/
patent/2_History.htm#_edn11
So, rather than placing a strong emphasis on providing rewards for creation, this patent grant feature placed a strong emphasis on diffusion. 8 History of the Patent Law in India The Patents and Designs Act, 1911, which provided provisions for both product and process patents, governed India's patent law at the time of Independence. But most people agree that the country's citizens didn't benefit much from the patent law. 9 Foreigners benefited from the Act's design significantly more than Indians did. It hindered Indians' capacity for innovation and ingenuity and did nothing to advance scientific research or industrialization in the nation. 10 The Indian Patents Act of 1970 was founded on a different philosophy. The goal of Indian patent policy is to promote economic development by granting patents for inventions.
It seeks to contain or discipline these components by serious efforts and methods, while being conscious of the monopolistic components inherent in the patent system. The Patents Act implements several tactics to reduce the negative impacts of the patent system while acknowledging the power of patents as the right of capital to regulate markets. One of these tactics is exclusion in the case of patentability. Because so many people in India depend on agriculture for a living and because 75% of the population lives in poverty, methods of horticulture and agriculture as well as food have been excluded from the Indian patent legislation. 11 Evaluation of Patent Act, 1970 On April 20, 1972, the Patents and Designs Act, 1911 was replaced by Patents Act, 1970. Under this new legislation, a patent is granted solely for inventions that are both novel and useful.
For 8 Zorina Khan, ‘Innovations in Intellectual Property Systems and Economic Development’ the London workshop of the Commission on IPRs in January 2002.
P7,
available at https://economics.yale. edu/sites/default/files/files/Workshops-Seminars/Economic-History/khan-020328.pdf
9 AftabAlam, J., Novartis Ag v. Union of India &Ors (2013) 6 SCC 1
10 See Vandana Shiva, ‘Protect Or Plunder?: Understanding Intellectual Property Rights,’ Penguin Books, 2001, p. 38 11 As Cotton L. J. put in Blackeyv. Latham26 to be new in the patent sense, the novelty must show invention".
a patent to hold validity, the inventor must present a unique discovery, not merely reaffirm something that was already established before the patent was officially filed. The purpose of patent law is deeply rooted in fostering innovation across science, technology, and industry. By granting exclusive rights to inventors for a limited period of time, patent law incentivizes creation of new inventions that can be commercially beneficial. At its core, patent law champions the idea that only those inventions that are both innovative and advantageous can qualify for protection. This means that for an invention to be eligible for a patent, it must possess a distinct uniqueness and practical utility. Moreover, a valid patent must originate from the inventor's own discoveries, rather than serve as mere affirmation of existing knowledge at the time the patent application is submitted.
12 The territorial extent is outlined in Section 1 of the Patents Act of 1970. The definition and interpretation clauses were found in Section 2, and they provided definitions for the definitions "innovation" and "medicine" in clauses (j) and (l),13 respectively. The term "innovation" is defined in Section 2(1)(j) as any new and useful "art, process, method, or way of production;" "machine, device, or other article;" or "material generated by manufacture," and it also includes any new and useful improvement of any of those.
In accordance with Section 2(1) (l), "medicine or drug" refers to: • All medications intended for human or animal consumption, either internally or externally; • All materials used in the detection, management, alleviation, or avoidance of illnesses in people or animals; • All materials used to maintain or improve public health; and • Fungicides, insecticides, and germicides. 14 Items 1 and 2 made up Chapter I. "Inventions not patentable" was the title of Chapter II. There were three parts to Chapter II. What is not an innovation is covered in Section 3. It reads that
12 https://www.casemine.com/judgement/in/5609af38e4b0149711415dcf
13 Supra
14 Section 2(1) (l) of The Patents Act,1970
the following are not inventions within the meaning of the Act viz. i) An invention that is pointless or makes claims that are blatantly at odds with accepted natural principles; ii) An invention whose main or intended application would violate the law, morality, or public health; iii) The simple act of formulating an abstract theory or discovering a scientific premise; iv) The simple application of a recognized method, machine, or device, or the finding of a new property or use for15 an existing substance16, doesn't qualify as innovative unless it results in a new product17 or incorporates at least one new reactant18.
v) A material produced by a simple mixing that just causes the characteristics of its constituents to aggregate, or a method for creating such a material; vi) The simple placement, reorganization, or replication of established devices that each operate separately and in a recognized manner; vii) A method or approach for assessing performance during the manufacturing process, aimed at enhancing the efficiency of machinery, equipment, or devices, as well as improving or restoring existing systems, or optimizing manufacturing control and outcomes. viii) A technique used in horticulture or agriculture; ix) Any process used to treat people medicinally, surgically, curatively, prophylactically, or in any other way; similarly, any procedure used to treat plants or animals to cure them of sickness.
Patentable inventions that are restricted to manufacturing processes or techniques are covered in Section 5. In the event that an invention claims substances that are either a) relating to the substances which has been prepared or produced by the chemical processes19
15 https://www.casemine.com/judgement/in/5609af38e4b0149711415dcf
16 Supra
17 Supra
18 Supra
19 Section 5 of the Patents Act, 1970 [Omitted by the Patents (Amendment) Act, 2005]
(such as intermetallic compounds, semi-conductors) optical glass,20 alloys and b) applied for use, or eligible of use, as the food, medicine, or drugs, no patent will be granted for the claims for the substances themselves. Nonetheless, patents will be granted for claims pertaining to manufacturing processes. 21 Notably, Section 5 of Chapter II of the Act clearly prohibited product patents for substances intended for use and capable of being used as food, medicine, or drugs, as well as substances manufactured or created by chemical processes, and these substances were no longer patentable. The award of a patent for an atomic energy-related invention was also forbidden under Section 4. Hence, the Act kept the distinction between invention and patentability and recognized it unambiguously.
The Patents Amendment Act, 2002:- The Patents Amendment Act, 2002 provided some important modifications which directly tilted the fine balance between the interests of patent holders a society. Some modifications enable the increase the duration of protection of patent for a period of 20 years. These modifications thereby increased significantly the average duration of protection of patent. These modifications remove the discrimination regarding process patents in the fields of health and nutrition where the duration was available only for 7 years. 22 Section 3 of Patents Act, 1970 deals regarding the subject matter which are non patentable. This section was amended by the substitution of some existing clauses. More clauses had been inserted with the objective of expanding the area of non-patentable subject matters.
The substitutions include the limitations of the patentable subject matter concerning public health, environment and medical methods by complying with the specific flexibility offered by the TRIPs Agreement. Additions include computer programs, topography of integrated circuits and traditional knowledge. The Patents (Amendment) Act, 2005 The Parliament of India has passed the Patents (Amendment) Bill 2005, which replaces the
20 Supra
21 Supra
22 Section 53 of the Patents Act,1970
Patents (Amendment) Ordinance 2004 framed by the Government of India in December. The Ordinance was passed in the month of December,2004. Product patent regime in the sector food, chemicals, and pharmaceuticals have been introduced in this Ordinance. India has to protect protect the patent in these fields with effect from January 1, 2005, to meet the obligations set forth by the TRIPS Agreement, which is included as Annexure IIIC in the WTO Agreement. To meet these requirements, the Indian Government initially issued Ordinance in
2004 that needed parliamentary approval. When the Patents (Amendment) Bill 2005 was
presented in Indian Parliament, the government made some modifications to the provisions outlined in the Ordinance. Chapter IV of Patents Act, 1970 which deals with the Exclusive Marketing Rights was also repealed because they became useless after the commencement of product patent regime for pharmaceutical inventions. Pharmaceutical Patents: - Examining the level of innovation needed in pharmaceutical patent applications is intriguing. Given that, as was already mentioned, the standard for innovation for pharmaceutical patents is lower than it is for other inventions. In the case of pharmaceutical patents, where the Gujarat High Court had the opportunity to examine the issue of inventiveness in a pharmaceutical patent, it is also noteworthy that Indian courts are least interested in investigating the problem of inconsistent standards of inventiveness that exist in various nations.
It should be emphasized that this incident took place prior to the modification. Conclusion: - Our daily lives now revolve around the use of digital resources and technology. They enable us to perform tasks at the atomic and molecular level. Former Indian President and scientist Dr. A P J Abdul Kalam claims that the combination of biotechnology and nanotechnology could replace a lot of things in the medical industry. The Indian Patent Regime can effectively handle the challenge presented by the cutting-edge technology if it has a well-thought-out patent strategy. Even though there are too many gray areas to list, this should not prevent patents from being granted for innovations resulting from nanotechnology. Laws are made by society, for society, and for society's benefit.
It would be regrettable if we allowed our legal systems to continue to be obsolete while science and technology advanced rapidly. Law is necessary for
science to safeguard its novel discoveries. Therefore, a legal development is not unreasonable given a scientific advancement. Utility patents were not covered by the 1970 Patents Act. It is desirable and advantageous for India to implement "Utility Patents" given the enormous potential for finding new uses for existing medications, both from the traditional and modern medical systems. Since this is a significant and worrying issue, the Patents Act of 1970 ought to be discussed and amended.