India and Its Patent Laws – An Introduction
Indian patent legislation plays an important part in fostering innovation and technological progress and hence economic growth by giving to inventor’s ownership for a limited time on their creations. The Indian patent regime is compliant with global standards, but at the same time caters for the specific needs and concerns of the nation. In this paper, we aim to present the systematic and in-depth review of the patent law in India, its historical development, the existing legal framework for patents, the process of application and granting patents, as well as the recent developments and controversies related to patent law and its practice.
Overview of the Development of Patent Legislation in India
This branch of law originated in India during the 19th century, and thus these very events come to the most significant feature of the industrial property legislation of any country. The first legislation in India pertaining to patent was the Act VI of 1856 that was aimed at promoting inventiveness through safeguarding the interests of the inventors. Nevertheless, this act was very soon done away with and replaced by the Act IX of 1857, followed then by the Patents and Designs Protection Act of 1872, which for the first time made the concept of patenting a reality. Furthermore, the new Indian Patents and Designs Act Of 1911 was a breakthrough in patent regulation in India, as it established one regime for patents and designs.
The Patents Act of 1970, which is still in force today, was an event that many would categorize as ‘revolutionary’. For it was the first legislation concerning patent creations in India following the appropriation of the Indian Independence constitution. Under this act, special importance was placed on very rapid industrial development and import substitution, but consumables, particularly medicines, had to be made available to the public. To promote domestic manufacturing of inexpensive products, this law restricted patent rights primarily to processes in certain sectors, most notably pharmaceuticals and food.
This scenario, however, changed in the year 1995, when India embarked on the process of forming the World Trade Organization and agreed to TRIPS, the Trade Related Aspects of Intellectual Property Rights. That meant the such laws on patenting Mr C acquired had to be endorsed so several amendments to the Patents Act were done in the years 1999, 2002 and 2005. With this agitation of 2005, the law regarding patents was amended to introduce product patents for pharmaceuticals and other sectors which brought the patent laws of the country in line with TRIPS agreements.
Legal Environment for Patents in India
The principal statute in India that concerns patent law is the Patents Act, 1970, which was amended in the year 2005. The act prescribes the system and rules concerning how patents are to be granted and enshrines the rights of patent owners together with the qualifiers to those rights. This is further substantiated by the Patent Rules, 2003 which provide details on the procedures and practices to be followed in relation to patent applications and their processing.
The *Controller General of Patents, Designs and Trade Marks (CGPDTM)* is the chief authority of the patent law practice in India, and it falls under the Department of Industrial Policy and Promotion (DIPP) in the Ministry of Commerce and Industry. Indian Patent Office is located in four regions of India: Delhi, Mumbai, Chennai and Kolkata, and its functions include receipt of patent applications, claims examination, and patent granting.
India also belongs to *Paris Convention for the Protection of Industrial Property* and the *Patent Cooperation Treaty (PCT)*. Therefore, Indian patent applicants can file international applications and also seek patent protection for their inventions beyond the Indian territory.
Conditions for Patentability
As stated in the Patents Act, certain conditions must be satisfied before a patent is granted for any invention in India. An invention should meet the following requirements:
- Novelty: The invention should be original and should not have been published or made available in any manner over the internet or otherwise before the filing date.
- Inventive Step (Non-Obviousness): The invention must contribute towards a technical progression or bear an economic significance and should not be obvious to a person having skill in the art.
- Industrial Applicability: The invention should be capable of being made or used in any industry.
- Non-Excluded Subject Matter: There are several categories of ideas that may not be patented, such as inventions that are merely theories, business ideas or methods that have no supporting recreations and some computer programs. Section 3 of the Patents Act of 1970 enumerates inventions which may not be patented.
Patent Application Process in India
The process of obtaining a patent in India is a lengthy and detailed procedure and clearly consists of the following main stages:
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Filing of the Patent Application
The first step is to submit a patent application to the Indian Patent Office in either provisional or complete form. A *provisional application* may also be submitted in order to obtain a claim priority at an earlier date and the complete specification can be drawn up within a year from such date. If the idea is ready to be patented, a *complete specification* should be submitted, this time providing all the information about the idea or invention.
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Publication of the Application
Once all documents specified in the application are submitted, the application gets published in the official patent journal by the Patent Office after waiting for a period of 18 months from the priority date claimed in the application. Nevertheless, the applicants may file an application for *early publication*. The period in turn will be shortened to one month following the request made. After this period, the application is made available to the public.
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Examination Request
Before the expiration of 48 months from the date of filing or the priority date, the applicant shall submit a *request for examination (RFE)*. This request shall be considered the prerequisite for the examination of the application. The Patent Office, upon the submission of the RFE, appoints an examiner who will check the invention for its patentability compliance.
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Review of the Application and First Examination Report (FER)
The application is reviewed by the examiner, who examines whether the invention is novel, non-obvious, and capable of industrial application. The examiner prepares *First Examination Report (FER)* including the comments and any objections regarding the application. The applicant needs to reply to the comments within six months (which can be prolonged by three additional months).
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Confirmation or Refusal of Patent
If the applicant responds satisfactorily to the objections, then the patent shall be granted and announced in the Patent Office Journal. On the other hand, failure to sufficiently respond to the objections leads to refusal of application.
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Opposition and Revocation
The Patents Act, 1970 affords itself the provision for opposition both *pre-grant* and *post-Grant* in order to enhance the standard and legitimacy of patents allowed. Pre-grant opposition may be lodged by any person after publications and before inclusive of the grant, while post-grant opposition must be instituted within a year from the date of grant of patent.
Rights and Limitations of Patentees
A patent, once obtained, gives the *right to exclude others* for the patent holder from making, using, selling, or importing or offering the patented invention without his or her permission. These rights are granted for a period of *twenty years from the effective filing date*. However, some exceptions to patent protection are also found in Indian laws in interest of the public as well as ensuring availability of certain products:
1: *Compulsory Licenses: * Section 84 of the Patents Act empowers the government to issue compulsory licenses to some patents on the condition that that the product is not affordable by the general masses or there has been a failure to satisfy its demand. This helps in preventing the abuse of patents for the commercial manufacture of certain products, particularly life-saving medicines.
2: *Government Use: *The government reserves the right to use any patented invention for public activity barring the consent of the patent holder, however, the patent holder is paid for it.
3: *Parallel Import: * In India, Tm permits parallel imports which allow the importing of patented products from other countries as long as it is legally sold there. This is to help enhance price regulation and prevent against monopolistic rivalry in the market.
4: *Research Exemption*: Research or experimental use of patented inventions is permissible in order not to stifle creativity and to avoid overregulating activities that should be academic or scientific.
Recent Trends and Developments in Patent Law in India
Certain trends and changes that have occurred in Indian patent law in recent years are worthy of mention.
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Strengthening of Intellectual Property Infrastructure
The Indian government has made considerable effort to enhance the effectiveness and efficacy of the patent system. Initiatives undertaken include the e-filing of patent applications, the decrease of the examination backlog, and the streamlining of the patent examination.
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Strengthening the Focus on Pharmaceutical Patents
The patent rules regarding medicines in India are subject to reason because the country is home to a vast pool of generic medicine manufacturing industries. The landmark case decided by the Supreme Court in *Novartis AG v. Union of India (2013) * denied a patent for a new version of the cancer drug Glivec on the basis that the necessary requirements for elevated efficacy had not been fulfilled. This decision reaffirmed India’s resolve in safeguarding the right to access medicines, particularly those that treat those diseases that are life threatening.
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An Upward Trend in Engagements in Application for Patents
According to local and foreign applicants, the number of applications filed in India has greatly increased over the years. This inflation is due to the upsurge in the R&D activities in the countries of India such information technology, biotechnology, and pharmaceuticals. Initiatives such as *Make in India* and *Start-up India* have additional stimulated innovators within the country.
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Judicial Interpretations on Patentability
The application of patent laws, especially their relevance to issues such as software and biotechnology patents, and to Section 3(d), have been greatly informed by the Indian courts. The judiciary has also played an important role in addressing the issue of evergreening of patents, particularly in the field of pharmaceuticals balancing the need for innovation and health issues.
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Creating Awareness and IP Education
The government of India has also launched programmes to make the people aware of IPR and train them in IPR towards helping them as inventors, institutions and business enterprises. IP literacy campaigns, workshops, and seminars are being conducted in different parts of the country.
Conclusion
To sum up, patent law in India is an emerging discipline which promotes creativity while catering to the country’s particular socio-economic demographics. While ensuring that inventors rights do not infringe on the society’s need for affordable innovations, given health and other concerns, in this respect the patent system of India has made great progress in being on par with both foreign standards and encouraging local developments. Reforms already implemented, or those which shall be implemented within the scope of the project, improved IP infrastructure, and enhanced judicial control are aimed at achieving an efficient patent system which encourages technological progress, economic growth, and concerns of a welfare nature.
