Patents are exclusive rights granted for inventions, which are products or processes that offer a new solution to a problem or provide a new way of doing something. The patent is protected by the inventor.
Protection is granted for a limited time, typically 20 years. Inventions protected by patents cannot be made, used, distributed, or sold commercially without the consent of the patent owner. It is usually necessary to enforce these patent rights in a court of law. Upon successful challenge by a third party, a court can also declare a patent invalid.
As long as the invention is protected, the patent owner can decide who can and cannot use it. On mutually agreed terms, the patent owner can give permission to, or license, other parties to use the invention. A patent owner can also sell the right of invention to someone else, who then becomes the new owner.
The three basic requirements for legal protection to be awarded to patents are as follows:
It must be a novel invention, which means that it has not been invented before.
To qualify for a patent, the invention must be not obvious, i.e. it must be an improvement over the previous one. Just changing the technology will not qualify.
A bonafide invention is one in which the invention is useful to the world in a bonafide manner and is not solely used illegally.
Origin of Patent Law in India
India in ancient times had high regard and standards for Science and Arts. However, in earlier times the said knowledge was passed only to trusted disciples and not to the entire public.
But why was such secrecy maintained? In earlier times due to no legal protection there existed higher chances of the invention being stolen, therefore, it was either passed on to the next generation or became dead with the creator. But in modern times things have now changed and there are legal protections offered to the original creators of the invention.
The very first time patents emerged in India, it was a British occupied colony and Britishers used their own system while drafting Indian Patent Act. The first known Act for legal protection and recognition of patents in India was based on British Patent Law of 1852. This act awarded legal protection to the inventions for a fixed period of 14 years. This act was amended and modified in 1859 with few changes and amendments. Patent and Design Act, 1911 was a detailed legislation and remained in use till enactment of Patent Act, 1970.
Indian Patent Act, 1970: Enactment and Salient Features
With advancement in industrial revolution, India getting independence from British rule and various economic and political scenarios being changed, there was a need felt for more comprehensive, effective and evolved patent law in India.
In 1957, Government of India appointed Justice N. Rajgoapala Ayyangar to review and examine the existing law on patents and to suggest changes and recommendations if any. In September 1959, a report was submitted by Rajgopala Ayyengar known as Patent Law Revision report recommending changes in patents in reference to food, drugs and medicines. These recommendations were introduced in the Lower House of Parliament on September 21, 1965.
On 19th September, 1970 the bill was passed by both: Lower House and Upper House of Parliament and finally came in its present form: Patents Act, 1970.
The patents Act 1970 had following salient features:
The act presented a balanced approach and was made by keeping the interest and need of investors in mind.
Under this Act, the patents were awarded to encourage, promote and protect the inventions and the inventors alike.
The patents were not merely given to patentees to enjoy monopoly of any patented invention or article
This Act provided special status to patents associated with food items, chemicals and medicine.
Patents related to food, drug or chemical were not awarded for the products but for the process of manufacturing the product.
Thus, with the passing of the Patent Act, 1970 many new changes and amendments followed. There were further amendments in the form of Patent (Amendment) Act, 1999, Patent (Amendment) Act, 2002, and Patent Amendment Act, 2005.
Patent Cooperation Treaty (PCT)
In 1967 on the request and recommendation by the Executive Committee of the Paris Union for Protection of Industrial Property a draft of an international treaty was prepared which came to be known as the Patent Cooperation Treaty. It came into force on January 24, 1978 and came into operation on June 1, 1978. Initially, there were about 18 contracting states whose number now stands more than 100.
The principles of Patent Cooperation Treaty (PCT) are as follows:
❖ To simplify and present more effective and economical method for applying patent protection for invention in various member countries
❖ To get rid of the system which required filing of several applications for patents of same invention in member countries
❖ To help member countries with increased workload
❖ To facilitate and accelerate access by industries and other interested sectors to technical information related to inventions and to assist developing countries in gaining access to those technologies
The Patent Cooperation Treaty makes the Paris Convention more easy, effective and economical for the patentee in the countries which are members of the Paris Convention.
Scope and Future of Patent Protection
Since the Patents Act of 1970, the first patent act was introduced in the 19th century, the level of protection has evolved. In 1995, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) was signed, followed by the Madrid Protocol, which offered trademark protection.
There has been recognition in government circles of the need to protect IPR. To promote innovation and entrepreneurship and strengthen existing laws, the government created the National Intellectual Property Rights (IPR) Policy in 2016.
A slow but steady progress has been made in ensuring patent protection. Stronger patent protection laws have been opposed by some who believe it could harm India's interests. It could, for example, increase the cost of life-saving drugs and put them beyond the reach of large segments of the Indian population. Generic drugs, which are relatively inexpensive and accessible, are also produced in large quantities in the Indian pharmaceutical industry. The production of these would be made much more difficult by a stronger IPR regime. Patenting seeds and other products may also threaten food security if IPR laws are strengthened.
Another problem is a lack of awareness. According to a study by Einfolge, an international patent analytics and market research company, most respondents from over 200 educational institutions in South India were unaware of the benefits of IP.
How will intellectual property rights be protected in India in the future? In order to protect IPRs and maintain national interest, the government must maintain a delicate balance. As India makes significant strides in science, technology, agriculture, and culture, a stronger IPR regime can't be ignored. It is impossible for innovation and creativity to thrive without strong intellectual property protection. It will be impossible for innovators and creative people to reap the rewards of their efforts.
Scientific innovations have been made in India by institutions like the Centre for Scientific and Industrial Research (CSIR). Due to weak IPR protection, they have been unable to commercialize many products.
In addition to the public sector, the private sector also stands to benefit from stronger IPR laws. India is one of the world's leading startups, after China and the UK, according to a report by the Centre of American Entrepreneurship. As part of the Forbes list of the world's most innovative companies, five Indian companies made the list. Stronger protection for their products and processes will also benefit companies like these.
The future of patents in India will depend on three things: awareness about Patent and Intellectual Property Right benefits, stronger enforcement, and convincing Indians that national interest will not be compromised.
Online References
iPleaders, https://blog.ipleaders.in/what-is-a-patent-law-in-india/ last visited June 5, 2022)
B&B Associates LLP https://bnblegal.com/article/overview-of-patent-law-in-india/ (last visited June 7, 2022)
IPTSE https://iptse.com/future-of-intellectual-property-rights-in-india/ (last visited June 8, 2022)
This article is written by Kulwant kohli of Rani Durgavati Vishwavidhalya.