Topic : The Role of Patent
—by Iqra Iman
The term ‘ patent’ has its origin from Latin word ‘patene’ which means ‘To open. In legal parlance the patent is a legal grant of monopoly right for some fixed term to the creator of new and useful invention in return of his disclosing the invention. It is an important species of intellectual property. The grant and use of patent is regulated by law. In this chapter salient features of patent are explained for proper understanding of the concept and dynamics of patent. Modern era is an era of science and technology. A legal system should reward innovative enterprise by conferring monopoly rights for the commercial exploitation of an invention. The patent law recognises exclusive right of a patentee. In Section I, Chapter 2, we have discussed international legal regime relating to various intellectual property rights, including patent. In this chapter the evolution, growth and recent developments of patent law in India is discussed. Patent Act of 1970 has been amended from time to time. Recent amendments made through Ordinance of 2004 and subsequently replaced by Patent (Amendment) Act, 2005 is also discussed hereunder.
Meaning of Patent
A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to manufacture the new article invented or manufacture an article according to the invented process for a limited period. After the expiry of the duration of patent, anybody can make use of the invention. A patent is a form of industrial property or as it is now called intellectual property. The owner of the patent can sell this property. He can also grant licences to others to exploit the patent.
ENACTMENT OF PATENT ACT OF 1970
Advent of industrial revolution, change in economic and political scenario throughout the world and freedom of India from British Raj necessitated a comprehensive law on Patent so as to evolve more effective patent system in India. Thenational regime of IPRS Section Il-Patents. In 1957, the Government of India appointed Justice N. RajagopalaAyyangar to examine afresh and review the Patents Law in India and advise the Government on necessary changes. Justice Ayyangar submitted a comprehensive report on Patents Law Revision in September 1959. The Patents Bill, 1965 based mainly on the recommendations contained in his detailed report and incorporating a few more changes in the light of further examination made particularly with reference to patents for food, drugs and medicines, was introduced in the Lok Sabha on 21st September, 1965. The Patents Bill having been passed by both the Houses of Parliament on 19th September, 1970, came on the statute book as the Patents Act, 1970.
Establishment of WTO in 1995 and adoption of Trade Related Intellectual Property Rights (TRIPS) heralded a revolutionary change in IPRS regime worldwide. India having become founder member, incurred obligation to bring its IPR legal regime in tune with IPR obligations as envisaged in TRIPS within 10 years of time frame. Accordingly the Patent Act, 1970 was amended in phased manner.
Exclusive Marketing Rights (EMRs)
By the Patents (Amendment) Act, 1999 a new chapter (Chapter IV-A consisting of Sections 24-A to 24-F) was inserted in the Patents Act, 1970 with retrospective effect from 1st January, 1995 which deals with the exclusive marketing rights to sell or distribute certain articles or substances in India.
Special provision for selling or distributionWhere, at any time after an exclusive right to sell or distribute any article or substance has been granted, the Central Government is satisfied that it is necessary or expedient in public interest to sell or distribute the article or substance by a person other than a person to whom exclusive right has been granted, it may, by itself or through any person authorised in writing by it, sell or distribute the article or substance.
The Central Government can, by notification, after an exclusive right to sell or distribute an article or substance has been granted, direct that the said article or substance shall be sold at a price determined by a specified authority.
Patent (Amendment) Act, 2002 (Uniform term of 20 years provided)
1. The new definition of the term invention-‘a new product involving an inventive to step and capable of industrial application into force, to comply with the TRIPS agreement.
2. Patent protection is extended to a uniform term of 20 years to all categories of inventions as per Article 33 of the TRIPS agreement.
3. Discovery of any living thing or non-living substance occurring in nature has been made non-patentable.
4. Provision for filing request for examination by any other interested person was also introduced.
5. Grounds of opposition under Section 25 and revocation under Section 64 were enlarged by adding the following grounds:
(a) non-disclosure or wrongly mentioning the source of geographical origin of biological material used for invention;
(b) anticipation having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.
6. The provision of licenses of right’ was abolished.
7. The provisions regarding working of patent, compulsory licenses and revocation of patents were amended by incorporation of extensive provisions relating to the compulsory licensing possibilities along with the terms and conditions of such licenses within the framework of TRIPS.
8.An appellate board was established to deal with the appeals against the decisions of the controller of patents Act.
9. Bolar provisions have been added by inserting Section 107-A to the 10. Priority has been extended for up to 12 months for applications filed under EPO, ARIPO, OAPI & EAPO, etc.
Patent (Amendment) Act, 2005:
The legal requirement of making Indian Patent Law to fully comply TRIPS, necessitated major changes in the Patent Act. Significant changes which have been incorporated are as under :
5. Bolar provision under Section 107-A has been added whereby use patent for development and submission of information for regulatory approval will not be considered as an infringement of the patent right.
6. Provisions for parallel imports of patented products from a person duly authorised under law to produce and sell or distribute the product which shall not be considered as infringement of patent right under Section 107-A(b), have been added.
7. Provision for enabling the grant of compulsory licence for export of patented medicines to countries which have insufficient or no manufacturing capacity to meet public health emergencies such as HIV, AIDS. This provision is in accordance with the Doha Declaration on Public Health.
8.Provision for acquisition of patent for public health purposes. 9. Provision for pre-grant and post-grant opposition to the granting of a patent.
10. Provisions relating to opposition procedures modified to streamline the system.
11. Patent right in respect of the 12000 applications, a majority of them from multinational pharma companies, already lodged in mailbox will be available only from the date of grant of patents and not retrospectively from the date of publication.
12.Protection will be valid for 20 years from the date of application.
13. Provision for exclusive marketing rights have been deleted.
14.Government will revoke a patent, which is found to bemischievous to the State or pre-judicial to the public.
15. Patent protection for software in combination with or embedded in hardware like mobile phones, TVs and computers. As of now software applications embedded in hardware were provided only copyright protection.
The above survey of Indian patent law reveals that step by step the Indian Parliament has synchronised the Indian patent law with Global standards as envisaged under TRIPS. Though there has been protests and opposition to the grant of uniform term of 20 years and product patent in the field ofpharmaceuticals, agro chemicals and other related areas, yet keeping in view the global trends and international obligations, India has accepted the global challenges. It is now for our great pool of scientific talent and industrial enterprise to prove their superiority in global competitive world. Time has now come for greater awareness, pro-active approach and rigorous strategies in the field of IPRS in general and patents in particular.