4.patents act

8/6/2019 4.Patents Act

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PATENT PATENT A patent is a legal monopoly granted for a limited time to the owner of an invention.

It empowers the owner of an invention to prevent others from manufacturing,using, importing or selling the patented invention.

Patent Act, 1970 as amended in the years 1998 and 1999 along with Patent Rules,1972 govern patents in India.


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Patent, is a legal document granted by thegovernment giving an inventor the exclusive right

to make, use, and sell an invention for a specifiednumber of years. Patents are also available forsignificant improvements on previously inventeditems .

The goal of the patent system is to encourageinventors to advance the state of technology byawarding them special rights to benefit from their

inventions.

. Patent law is one branch of the larger legal fieldknown as intellectual property, which also includes

trademark and copyright law.


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Overview of IPR Patent system & Practice

S.ChandrasekaranController General


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Intellectual property

INDUSTRIAL PROPERTY+ COPY RIGHT

PATENTS DESIGNS TRADEMARKS

Patents &

DesignsPatent Information

Trade MarksCopy Right

Geographical Indications

Geographical Indications


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Intellectual Property Rights

PatentsIndustrial designs

Trade and service marks

Copy rightsGEOGRAPHICAL INDICATIONS OR

APPELLATIONS OF ORIGINS.Layout designs (of integrated circuits).

Neighbouring rights.Undisclosed INFORMATIONS (trade secrets).Anticompetitive practices in contractual licenses.Protection of inventions in biotechnology (plants).


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L egislative MeasuresL egislative Measures

T he Patents Act, 1970Product PatentPatent Term of 20 yearsPublic Health SafeguardsProtection to TK

T he T rade Marks Act, 1999Service Marks and Collective MarksTerm increased from 7 years to 10years


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The word patent came from the Latin wordPatere which means to open

It means that it is an official record about

the exclusive right granted which is openTo the world at large

The earliest patent granted is perhaps thePatent right granted by HENERY VI during1449 to new glass manufacturing process to john Utynam, then by queen Marry-1554Later queen Elizabeth in 1561 also grantedPaten Under the British Crown


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D uring the later part of 19 th century newinvention in the field of art, process , method or

manner of manufacture , machinery , apparatusand other substances, etc., are on the increaseand the inventors became very much interestedthat the inventions done by them should not be

copied by any one else and no one should infringetheir rights by copying or adopting their process or methods.At that time since Britieshers were ruling our

country they enacted Indian patents and designs act 1911This act is being amended from time to time andthe latest being in 2002


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In the United States, patent law dates to In the United States, patent law dates to 1641, when the first patents for inventions 1641, when the first patents for inventions were issued by the Massachusetts Bay were issued by the Massachusetts Bay Colony for the manufacture of salt Colony for the manufacture of salt.

The first Italian patent was actually awarded by the Republic of Florence in 1421, and there is evidence suggesting that something like patents was used among some ancient Greek cities. In 500BC, in the Greek city of Sybaris (located in what is now southern Italy), "encouragement was held out to all who should discover any newrefinement in luxury, the profits arising from which were secured to the inventor by patent for

the space of a year."


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If an unique process or thing is invented, it gets

patented so that the inventor has the advantageof exclusive use or benefit of the inventiono thers sh o uld n o t c opy and

de pr ive the invent or .

For the patent, there will be usually a time limitup to which the patent is protected and afterthe expiry of that time any body can copy it.

Eg: Xerox when first invented it was having 15 years of patent rights,After that many others brought zeroxmachines

Like cannon, modi, etc.,


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Patent means the patent registered underpatents act

When a new invention is registered, the owner getthe patent rights and no body can copy his invention

under this act the new invention are being patentedso that there is no infringment of the patentedrights by other people.

There are various advantages if the patents areregisterd with the authorities .

The following are the advantages :


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1. The patentee gets the exclusive rights to use his invention

2. If any one interferes, he can sue for injunction, damages or an account of profit against the person who infringethe right

3. If the patentee has no source and means to develop it

commercially, then he may sell or grant lincecse toothers to exploit commercially the patent and there byget money

4. The holder of an exclusive licence has right which can be

enforced against the infringement of the patent5. In case of patented item gets further improvement then

the patentee can make patent of addition

6. The grant of a patent enables the inventor to obtain anofficial record of his inventership from the government


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What is an Invention ?An invention is

[a] a new and use full process or method ofmanufacture of an article or substance, whetheror not the article or substance is new or not

[b] a new and use full article or substance a

product or process involving the inventive stepand capable of industrial production .

Th ere are 3 basic requirements>

1. The manner of manufacture2. Its novelty

3 Its utility- commercial utility


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According to the patent act the followinginvention A re not patentableA re not patentable

a)An invention which is frivolous which is contraryto well established lawb)Invention prejudicial to the public order or

environment against public well fare

c)Mere scientific principle or discovery etc, of anabstract theory or discovery of any living or nonliving things occurring in nature

d)D iscovery of know substance i.e new property or

new use of a known process etc.,e)Admixture i.e substance obtained by a mixtureof some thing

f)Arrangement or rearrangement or dulicate of a

known thing/device or function etc


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g. Process of treatment of human being oranimals that is any process for the

medical, surgical, curative of humanbeings or animals,

h. Plants and animal in part of whole other thanmicro organism but including seeds varieties and species and essentially biological process for production or propagation

i. Mathematical programme that is a

mathematical or a business method or acomputer programme per se or algorithms

j. Literary programme i.e. literary dramaticmusical or artistic work or any other aestheticcreation what so ever including cinema.TV .,


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k. Mental act or method of playing games l. A presentation of information

m.Topography of integrated circuits n. Traditional knowledge on invention which ineffect or a traditional knowledge or which is anaggregation or duplication of known properties

or traditional know components o. Atomic energyp. Those substance which are used in food or drugq. Those inventions related to substance prepared

or produced by chemical process. However,methods or processes of manufacture shallbe patentable

->now product patent is also coming/*/*/*/*/*/*/*/*/*/*/*/*/*/*/*/*


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Application for patent

Who can apply for a patent ?

any one who claims to be true and first inventor

any person who is a assignee of the inventorby legal representative of the deceased

it may be made in joint names also


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S earch for anticipation by previous publicationand prior claim if any.

If any person before claiming the patent for anyinvention, he can ask for an examination in casehe has any doubt.

Then he has to submit an application to theexaminer and the examiner will makeinvestigation for the purposes of ascertaining ifthere is any claim, the examiner shall investigatein India or else where any claim is there. Afterthat he will file before the controller who shallcommunicate the gist if any objection is found tothe applicant


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Th e controller may refuse to register t h e patentIf h e finds t h at t h ere is already a patent for th at invention, or if any rules are notcomplied wit h

If the investigation shows that there is no claimAnd if all the conditions are fulfilled then

He will proceed with the registration of the sameAnd he will advertise in the official gazette


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W hat are the steps involved in the procedure to get

patent?

The following are the steps in brief to get theInvention patented

There are various steps involved to get the Patent


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1. Filing of an application for a patent at the

appropriate office with a provisional orcomplete specification of the invention

2. Filing complete specification if a provisional

specification accompanies the application

3. The patent office will examine and accept

the application

4. If there is an objection by others it will be

looked into by the office

5. S ealing of the patent


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W hat are the conditions to grant patentsW hat are the conditions to grant patents

While granting the patents the Govt, may imposeCertain conditions

any machine or apparatus or other article the

Government may make use of it

it may be used by any person for experiment or

research or imparting educationin case of medicine, or drug the govt, may use

it in hospital or dispensary maintained by the

government


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What are the rights of the patentee?

If the person has taken the product patent ofhis invention, then he has the exclusive right on]S uch invention and he can prevent third parties who do not have the consent from the act ofmaking , using offering for sale, selling orimporting for those purpose that product in India

If it is a process, the exclusive right to prevent

Third parties from infringing the rights


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Terms of patentIn case of medicine, drug,Food etc it will be

5 to 7 years In any other inventionit is 14 yeas Every 3 rd year renewal feemust be paidTo keep the patent rights in force .


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Revocation of patent

*******************It means cancellation of the patent.

On a petition by any person or Govt,the patent

Granted may be revoked by the Highcourt on theFollowing grounds


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1. Patent already granted 2.Person to whom it is granted is not

entitled 3.W rongfully obtained the patent 4.Not a new invention 5.Mis-REPRESENTATION 6.Not patentable under the act 7.Already in use in India 8.W rong mentioning of the source or 9. geographical origin 9. If relating to atomic energy the Govt,

may ask for recocation 10. In the public interest.

Grounds for revocation of patent> ->

->


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Penalty for infringement

Contravention of secrecy,Falsification of entry inthe register >>>>> 2 years jail

or fine or bothUnauthorized claim >>>>>fine Rs.10000

Wrongful use of wordPatent office etc., >>>>>>>fine + 6 month

imprisonment


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International arrangements

################With a view to fulfillment of a treaty, conventionOr arrangements with any country outside Indiawhich affords to the applicants for patents inIndia or to citizens of India similar privileges as are granted to its own citizens in respect of grantof patents and protection of patent rights, theGovernment may notify in official gazette suchcountry to be a convention country for this purpose .

This is a reciprocity arrangement


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Patent amendment act Main provisions

Exclusive Marketing Rights E M R is to be granted for 5 years it is applicable for agro- chemical and Parma business 3 conditions prescribed are

i. It should have been filed after 1.1.95 ii. Not marketed earlier in India

iii. Govt, reserves the right to give it to three or four companies

Restriction for getting patent abroad for investment in India is removed


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A patent is a Monopoly Right granted

F or an inventionBy the governmentTo the inventor or his assigneeF or a limited periodIt is valid within the country of grant


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W hy do You need

Patent InformationSIZE OF THE RESOURSE ENORMOUS AND W IDE Every

area of technology is covered.80% NOT PUBLISHED ELSE W HEREFIRST PUBLICATION:Inventions disclosed in patents well

before being published in any other type of documentInvention Patent published First publication in any form

Punched card 1889 1914Television 1923 1928

Jet engine 1936 1946EXPIRED PATENTS : FREE USE ;TO AVOID REDUNDANT RESEACH Use the technology

given in patent specification as a stepping stone.


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Patents Not Only ForMajor Technological

BreakthroughSuch As

LAZLO biros - ball point penRing pull for cans of beverages

But even for any small incremental inventionsINDIVIDUALS OR Companies-normally do not

clearly recognize the TRUE MARKET VALUE for aparticular INVENTION

e.g. Anti theft device for motor cars-wheel clampTetra pack style of cartons for milk & fruit juice


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Protection Of Intellectual Property In India(Patents, Designs, Trade Marks & Copyrights)

Sr.JOINT C ONTROLLER

OFPA

TENTS

A ND DESIGNS

JOINT

REGISTA

R OF

TR A DEM A RKS

MINISTRY OF C OMMER C E A ND INDUSTRY MINISTRY

OF H UM A N RESOURSE DEVELO P MENT

DE P T. OF INDUSTRI A L P OLI C Y & P ROMOTION

DE P T. OF EDU CA TION

C ONTROLLER GENER A L OF

PA TENTS, DESIGNS & TR A DE M A RKS

PA TENT OFFI C E

TR A DE M A RKS REGISTRY

C O P YRIG H T OFFI C E

REGIST A R OF C O P YRIG H T

GIR


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Jurisdiction of offices


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Patent Grant ProcedurePatent Grant Procedure

F iling of patent application

Publication after 18 months

Pre Grant Opposition /

Representation by any person.

Request for examination

Examination: Grant or Refusal

Publication of Grant of patent

Post Grant Opposition to grant of patent(Constitution of Opposition Board)

Early Publication

Decision By Controller


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Patent battleIn September 1997, a Texas company called

RiceTec won a patent (U.S. Patent No. 5,663,484)on "basmati rice lines and grains." The patentsecures lines of basmati and basmati-like rice andways of analyzing that rice. RiceTec, owned

by Prince Hans-Adam of Liechtenstein , facedinternational outrage over allegations of biopiracy .It had also caused a brief diplomatic crisis between

India and United States with India threatening to

take the matter to WTO as a violationof TRIPS which could have resulted in a major embarrassment for the United States


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.Both voluntarily and due to reviewdecisions by the United States Patent Office, RiceTec lost or withdrew most of the claims of the patent, including,

most importantly, the right to call their rice lines "basmati." A morelimited varietal patent was granted to RiceTec in 2001 on claims dealing with three strains of the rice developed by the company.


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Provexis gets US patent on tomato bioactiveBy Dominique Patton, 04-Nov-2005 Related

topics: Industry , Phytochemicals, plant extracts , Cardiovascular health UK-based Provexis has gained patent

protection in the US for its tomato

bioactive that improves circulation,allowing it to target the significant American heart health market.The company is launching the first

functional food using its Fruitflow


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The Sirco fruit juice drink will carry the claim that it 'helps to maintain a healthy heart and benefits thecirculation'. It will be positioned as heart healthy juice, an emerging category in the functional food market.But the firm is keen to tap into the US market for heart healthy foods, which it says is expected to reach US$34 billion in sales by 2010.Its tomato extract has been proven in human trials to inhibit blood platelet aggregation and thereby reduce therisk of thrombosis, a primary cause of heart attack and stroke.


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Sirco will be differentiated from

cholesterol-lowering foods already available on the European market as its benefit is derived from blood thinning and is said to have an effect

from the first serving.The technology gained patent protection in Europe in July 2003, and in Australia in August

2004. Provexis is also expecting to get patents in Japan, Mexico and Canada in the near future.


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The turmeric patent is just the first step in stopping biopiracy Two recent decisions, one by the W orld Trade

Organisation on a party's obligations under the TRIPs Agreement and the other, by the US Patent Office on thevalidity of a patent on turmeric have revived the wholedebate on the patent regime imposed by the W TO.

T W

O major decisions have revived the intensity of the patent debates that came to the centre stage of national politics during the finalisation of the Dunkel Draft Text of the GATT agreement and the subsequent coming into

force of the W orld Trade Organisation ( W TO).

The first is the W TO ruling against India in the US-India dispute on TRIPs. In July, the W TO ruled that India had not fulfilled its obligations under the TRIPs Agreement

for interim measures to receive and protect new product

patents applications in pharmaceuticals and agro- chemicals (so-called 'mailbox' a lications), and to


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The second is the decision of the US Patent

Office to revoke the turmeric patent on thebasis of a challenge filed by the NewDelhi-based Council for AgricultureResearch (CSIR). The patent had been

granted in March 1995 to two non-resident Indians associated with the University of Mississipi Medical Centre, Jackson, USA.As turmeric has been used for thousands

of years for healing wounds and rashes,CSIR challenged the patent on the ground that it lacked novelty. The US Patent Office upheld the objection and cancelled

the patent.


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The W TO dispute ruling is an attempt to put pressure on India to adopt US-style patent

laws. However, as the turmeric patent casemakes it evident, the US patent system has its own weaknesses which allow biopi-racy to be practised as a rule. The withdrawal of

the turmeric patent is only a first step in reversing biopiracy.Patents on Neem, Amla, Jar Amla, Anar,Salai, Dudhi, Gulmendhi, Bagbherenda,Karela, Rangoon-ki-bel, Erand,Vilayetishisham, Chamkura all need to berevoked.


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The US needs to revoke all the above patents based on Indian indigenous knowledge and 'prior art'. In addition, theUS also needs to change its patent laws which sanction biopiracy by its non- recognition of foreign 'prior art'. Patents are supposed to satisfy three criteria of: Novelty, Non-obviousness, and Utility.


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Novelty implies that the innovation must be new. It cannot be part of 'prior art' or existing knowledge. Non-obviousness implies that someone familiar in the art should not be able to achieve the samestep. Most patents based on indigenous knowledge appropriation violate thecriteria of novelty combined with non- obviousness because they range from direct piracy to minor tinkering involving steps obvious to anyone trained in thetechniques and disciplines involved.


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Prior foreign activity anticipates a US patent only when the foreign activity is in a tangible, accessible

form such as a published document or a patent. However, prior

foreign knowledge, use and invention are all excluded when the question of prior art is considered in relation to a US

patent application


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.Unless Section 102 of the US Patent Law

is changed, new examples of biopiracy will continue to occur.The phenomenon of biopiracy makes clear that it is not just Indian patent

laws that need changing. The US laws also need to be changed to fit into a fair and honest global Intellectual Property Right (IPR) system. The W TO, which has

been established to set up a multilateral rule-based system, has a role in ensuring that the inequity and injustice that biopiracy exhibits is removed from theIPR regimes of all member countries.


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The case focuses on Ranbaxy Laboratories Limited's patent litigations in the US. It elaborates on the factors that led to thecompany's global expansion, focusing specifically

on the US market. The case discuses in detail Ranbaxy's approach to the US market and also discusses its initial successes. It also looks at theUS pharmaceutical industry and the patent system in the US in detail. The Hatch- W axman Act of 1984 and its significant impact on the generics pharma industry in the US are also explained. The case discusses the problems faced by the generics players in the US in the

extremely competitive generics market and thee ect o increasin atent liti ation costs


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The decision to require that countries

grant product patents for pharmaceutical pharmaceutical innovations as a condition of membership in the W orld Trade Organization was very contentious. Almost 50 developing countries were not granting patent monopolies for drugs during the period the Uruguay round of GATT was being debated and these countries fiercely resisted the inclusion of this requirement, claiming that vastly higher drug prices would be associated with such patents.


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On the other side, business interest in the W est urged them to consider the benefits such protection might bring both in terms of focusing more research on tropical diseases and encouraging greater domestic and foreign investment in local research activities.


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This paper discusses the various theoretical implications for a developing country of introducing product patents for pharmaceuticals. Using India as an example, it then brings together information gathered from both published sources and personal interviews to examinethe potential magnitude of these effects.W hile not arriving at a conclusive answer to the question posed in the title, there aresome suggestions about the way events might unfold as the policy is implemented.


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4.patents act

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