Patent Law in India By: RACHITA MATHUR

Abstract:

The word “patent” is referred from a Latin term “patere” which means “to lay open,” i.e. to make available for public inspection. Patent Agent means a person for the time being registered under this Act as a patent agent. In other words,  according to section2 (m) of Patent Act,1970 “patent” means a patent for any invention granted under this Act. Infringement of Patent is a violation of unauthorized use, production, sale, or offer of sale of the subject matter or Invention of another’s patent.

Introduction:

Patent law is the branch of intellectual property law that deals with new inventions. Patent law has been widely used such as coding algorithms, business practices, or genetically modified organisms. There are three basic tests for any invention to be patentable:

  • The invention must be novel and not be in existence.
  • The Invention must be non- obvious,
  • The invention must be useful in a good manner, meaning thereby that the Invention must be solely used in any legal work and is useful to the world in a good manner.

The main object for enactment of the patent law is to encourage inventors to contribute more in their field by awarding them exclusive rights for their inventions. The patent invention may be both useful and new and it must relate to the machine, article or substance produced by a manufacturer, or the process of manufacture of an article.

Rights of Patentee can be as follows:

  • Right to exploit patent
  • Right to grant license
  • Right to Surrender
  • Right to sue for infringement

Obligations of Patentee can be as follows:

  • Use of government patent
  • Compulsory licenses can be granted
  • Patent can be revoked
  • Invention for defense related matters
  • Patents can be restored

Doctrine of Equivalent:

This doctrine expands the scope of claims beyond their literal language to the true scope of inventor’s contribution to the art. The scope of the doctrine will limit when there is no literal language.

Doctrine of Colorable Variation:

This doctrine involves some changes or alteration made for invention. Such alterations is made only to distinguish an invention or work from existing patent.

Case Laws:

 F. Hoffmann-La Roche Ltd v. Cipla Ltd., Mumbai Central,

Two plaintiffs, namely, F. Hoffmann-La Roche Ltd. and OSI Pharmaceuticals Inc., have filed the suit for permanent injunction restraining infringement of patent, rendition of accounts, damages and delivery against Cipla Ltd. Mumbai. Indian Generic manufacturer Cipla has won the landmark Roche v. Cipla Patent Infringement case in the Delhi High Court over Cipla’s Generic version of Anti-cancer Drug Erlotinib. The case is the first Patent Litigation in India post India’s 2005 Product Patent Regime which included public interest and pricing issues in addition to India’s Section 3d that prevents ever greening. The case was followed by Pharma Giants worldwide. Roche sued Cipla in 2008 before Delhi High Court claiming that Cipla’s generic product Erlocip violates former’s Indian ‘774 patent claiming “Erlotinib Hydrochloride”. The trial Judge rejected Roche’s appeal to grant interim injunction restraining Cipla from selling generic version of Tarceva on the grounds of public interest and the fact that there was an ongoing patent revocation proceedings against ‘774 patent. Cipla’s generic version costs about 1/3rd of Roche’s patented drug. Roche’s subsequent appeal to Division Bench also failed when not only did the bench uphold the findings of Trial Judge but also imposed costs on Roche for suppression of material patent information about Roche’s later filed application in India .This was the Patent Application which was actually on Polymorph Form B of Erlotinib Hydrochloride but was rejected in 2008 following the opposition filed by Cipla primarily on Section 3d. Cipla argued that Tarceva corresponds to Polymorphic Form B (which is not a product of ‘774 patent but a ‘507 rejected application) and that it is Form B which is more stable and suitable for solid oral dosage form than the compound disclosed in ‘774 patent comprising a mixture of Forms A and B. Roche’s subsequent appeal before the Supreme Court (SC) challenging the order passed by the division bench got dismissed due to the ongoing trial at the Delhi High Court.

Bajaj Auto Ltd. v.  TVs. Motor Company Ltd

The case of Bajaj vs. TVS Motors involves the controversy regarding the unauthorized application of the patent of the DTS. The case is very crucial regarding not only the financial stakes of the parties but also regarding the application of the doctrine of pith and marrow. The paper deals with the case study of the same, involving the facts, contentions, judgment and its analysis.

This is one of the few patent cases in India that have been decided keeping in view the Doctrine of Equivalents, which is also termed as the doctrine of pith and marrow. Above all, the principles involved in arriving at the decision are also crucial.

Conclusion:

At last we can conclude that. According to section 3 and 4 of Indian Patents Act, 1970 the following things can be patented:

  • Patent subject

Under the provision of sections 3 and 4 of the Act that it consists of a subject for a patent

  • Novelty

According to section Section 2(l) of the Patent Act 1970, a novelty or new Invention is defined as no invention or technology published in any document before the date of filing of a patent application, anywhere in the country or the world.

  • Industrial Application

According to Section 2 (ac) of the Patents Act as the invention is capable of being made or used in an industry.

The other important statutory criterion for obtaining a patent is the disclosure of a competent patent. A competent patent disclosure means a patent draft specification must adequately disclose the Invention, so as to enable a person skilled in the same field related to carrying out the Invention with undue efforts.

 

References:

https://blog.ipleaders.in/what-is-a-patent-law-in-india/amp/.

https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/patents.html#:~:text=Patent%20law%20is%20the%20branch,that%20deals%20with%20new%20inventions.&text=Once%20granted%2C%20a%20patent%20gives,in%20exchange%20for%20a%20fee.

http://corporatelawreporter.com/2016/12/14/patent-infringement/.

https://indiankanoon.org/doc/1176027/.

https://indiankanoon.org/doc/123231822/.

 

 

 

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