digital repository of course materials

th105 FoCARSFoundation Course For Agricultural Research Service

Digital Repository of Course Materials

• International and National Agricultural Research System in India

• Challenges and Management of Agricultural Extension in the New Millennium

• Production Systems Approach

• Economic Policies and Agricultural Development

• WTO and Agriculture Research and Development

• Intellectual Property Rights in Indian Agriculture

• Copyrights

• Designs as Ips

• Geographical Indicators

• Trade Secrets

• Trademarks

• Application of Bioinformatics in Agriculture

• Patents

Course Coordinators K. Kareemulla and S. Ravichandran

Support Team P. Krishnan and P. Namdev

Session on this topic-105 FOCARS. Jan 20, 2017.ICAR-NAARM.; To be used as part of academic reading for discussions during this session. ICAR-National Academy of Agricultural Management. Hyderabad.

PATENTS

R.Kalpana Sastry1

Background

The purpose of a patent is to provide a form of protection for technological

advances. Patent protection provides a reward not only for the creation of

an invention, but also for its technological feasibility and marketability.

This incentive promotes creativity and encourages healthy competition to

develop new technology, which is marketable, useful to the public and

desirable for public good.

Patenting has been in vogue from time immemorial. There were informal

ways of recognizing and rewarding the innovators. Value added goods

with novel features fetched higher returns. However, the need for a formal

system of assuring “protection” to inventors for their innovations was

essential to encourage further technical developments, fair trade-practices

and competition.

The modern patent system was catalyzed with the onset of the industrial

revolution, when exploitation of inventions for commercial benefits

became fairly common. The patent system underwent changes to keep

pace with the rapid advances in science and technology and the evolving

international trade practices. This demanded that trading partners have a

rational and harmonized patent system, which saw the setting up of

various regionalized patent conventions such as the Paris Convention, the

European Patent Convention, the Patent Cooperation Treaty (PCT), etc.

The rapid advancement in various fields such as biotechnology,

information technology, speciality materials, etc. is a result of intense

cross-fertilization of ideas from a number of fields. With the emergence of

globalization and restructuring process globally, filing of patents is

1 Joint Director, NAARM

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FOCARS

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enhanced in developed and developing countries. The entire process of

patenting and enforcements are now a reality the world over.

IPR management incorporation into work systems is now regarded as

highly productive and a necessity.

Characteristics of patent

An invention must have the following characteristics in order to be patent

protected:

New invention –The invention must never have been made

before, carried out or used before or made public before the date

it is filed. It should be novel.

Non-obvious and inventive- Sufficient advance in relation to the

state of art before it can be considered worth patenting. It should

involve an inventive step and when compared with what is

already known, it should not be obvious to someone with a good

knowledge and exposure on the subject.

Industrially applicable – It needs to be of use in some way. An

invention should be applicable or used in some of kind of

industry. This means that the invention must take a practical

form of an apparatus or device or product such as new substance

or method of operation.

Who can apply?

Application for patents can be made by any person claiming to be the true

and first inventor of the invention or by his assignee or legal

representative. An application for patent can be made by any of these

persons either alone or jointly with any other person. Two or more

companies as assignees may also make an application jointly.

Patent Law in India

Introduction of Patent Law in India took place in 1856 whereby certain

exclusive privileges to the inventors of new inventions were granted for a

National Academy of Agricultural Research Management

Session on this topic-104 FOCARS. July 25, 2016.ICAR-NAARM.; To be used as part of academic reading for discussions during this session. ICAR-National Academy of Agricultural Management. Hyderabad.

period of 14 years. However, the formal Patent protection in India was

introduced by way of Patent Act, 1911. Thereafter, various acts appeared

on the patent law pattern. Presently, the provisions with respect to patents

in India are governed by The Patents Act, 1970 and the subsequent

amendments to it in a phased manner in 1999, 2002 and 2005.

What is patentable?

Patents are granted in respect of any invention in goods. An invention

means any new and useful art, process, method or manner of manufacture,

machine, apparatus or other article, or substance produced by manufacture,

and also includes any new and useful improvement in any of them.

What is not patentable?

The patent Act, 1970 and amendment 2002 and 2005 specifies some areas

that are not patentable, as under Section 3:

An invention which is frivolous or which claims anything

obviously contrary to well established natural laws.

An invention the primary or intended use or commercial

exploitation of which could be contrary to public order or

morality or which causes serious prejudice to human, animal or

plant life or health or to the environment.

The mere discovery of a scientific principle or the formulation of

an abstract theory or discovery of any living thing or non-living

substance occurring in nature.

The mere discovery of new form of a known substance which

does not result in the enhancement of known efficacy of that

substance or mere discovery of any new property or new use e

for a known substance or of the mere use of a known process,

machine or apparatus unless such known process results in a new

product or employs at least one new reactant.

A substance obtained by a mere admixture resulting only in the

aggregation of the properties of the components thereof or a

process of producing such substance.

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The mere arrangement or re-arrangement or duplication of

known device each functioning independently of one another in a

known way.

A method of agriculture and horticulture.

Any process for the medicinal, surgical, curative, prophylactic,

diagnostic, therapeutic or other treatment of human beings or

process for a similar treatment of animals to render them free of

disease or to increase their economic value or that of their

products.

Plants and animals in whole or any part thereof other than

microorganisms but including seeds, varieties and species and

essentially biological process for production of propagation of

plants and animals; (The exclusions states “other than

microorganisms” suggesting that microorganisms in principle

have not been excluded from patentability).

A mathematical or business method or a computer programme

per se or algorithms; (This clarification relating to software is

important as it suggests that if software satisfies conditions of

patentable inventions and are linked to applications, etc., their

grant should not be rejected).

A literary, dramatic, musical or artistic work or any other

aesthetic creation whatsoever including cinematographic works

and televisions productions.

A mere scheme or rule or method of performing mental act or

method of playing game.

A presentation of information.

Topography of integrated circuits.

An invention which, in effect, is traditional knowledge or which

is an aggregation or duplication of known properties of

traditionally known component or components.



Other provisions after amendments

.

To make the understanding of the term clearer, invention has

been redefined as "a new product or process involving an

inventive step and capable of industrial application.

Recognition to an international patent application has been

provided for. The international application is defined as an

application for patent made in accordance with the Patent

Cooperation Treaty (PCT).

Any process for the treatment of plants to render them free of

disease or to increase their economic value or that of their

products is now patentable.

The time for restoration of patent has been increased from 12

months to 18 months and as such an application for restoration

of a patent ceased on or after 20th

May 2003 can be filed within

18 months from the date of cessation.

No person, without the permission of the Controller, can make

an application outside India for grant of a patent for an

invention relevant for defence purposes or related atomic

energy. The current provision has been added for the safety

purposes of the country.

Patent application and other documents (except PCT

international application) are now required to be filed only in

duplicate. Documents can now be filed, one copy in electronic

form with one hard copy (paper form).

Requirement for biological materials (in Section 10 of the IPA,

1970)

• The specification shall be accompanied by an abstract to

provide technical information on the invention.

• If the applicant mentions a biological material in the

specification which may not be described in such a way as

to satisfy clauses requiring the disclosure with the best

method of performing the invention such that any one

trained in the art can reproduce the invention, and if such

material is not available to the public.

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• The deposit of the material shall be made not later than the

date of the patent application in India.

• All the available characteristics of the material required for

it to be correctly identified or indicated are included in the

specification including the name, address of the depository

institution and the date and number of the deposit of the

material at the institution (as per the Budapest Treaty of

which India is a signatory).

• Access to the material is available in the depository

institution only after the date of the application for patent in

India or if a priority is claimed after the date of the priority,

and,

• Disclose source and geographical origin of the biological

material in the specification, when used in an invention.

Definition of “chemical process”

• Section 5 subsection (a) and (b) of the unamended Patents

Act 1970 does not allow grant of product patents for foods,

drugs, medicines or even to substances prepared or

produced by chemical process including alloys, optical

glass, semiconductors and intermetallic compounds. Only

process patents were allowed in these areas

• The text of the second amendment clarifies that for the

purposes of Section 5 of the Act, “chemical process”

includes biochemical, biotechnological and microbiological

process

Other patentable subject matter, as per new amendment in 2005:

• Since the Act does explicitly specify that any method relating

to the treatment of plants is patentable it can be interpreted

that the Act allows an invention to be patented that is merely

a method of making plants free of disease. Also, a process for

improving the plant’s value or increasing the value of the

plant’s products is patentable.



• The living entity of artificial origin such as microorganism,

vaccines are considered patentable.

• The biological material such as recombinant DNA, plasmids

and processes of manufacturing thereof are patentable

provided they are produced by substantive human

intervention.

• The processes relating to microorganisms or producing

chemical substances using such microorganisms are

patentable.

• Patents are available for “processes or methods of production

of tangible and nonliving substances” like enzymes,

hormones, and vaccines

• Processes using bioconversion, microorganisms, biologically

active substances, biotechnology, microbiology, and/or

chemical substances produced by using genetically

engineered organisms are patentable.

• Clones and new variety of plants are not patentable. But

process / method of preparing genetically modified organisms

are patentable subject matter.

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