BSc Agriculture - 5th Semester
Intellectual Property Rights - Notes
Unit - 3
Syllabus
Patents Act 1970 & Patent system in India,Patentability, Process & Product patent,
Filing of the patent, Patent specification, Patent claims,
Patent opposition, & Revocation,
Infringement, Compulsory licensing,
Patent Cooperation Treaty, Patent search, and patent database.
Patents Act 1970 & Patent system in India
The Patents Act 1970 is the law governing patents in India. It was enacted with the aim of promoting innovation and development in the country, while also ensuring that the interests of the public were protected. The Act provides for the grant of patents for inventions that are new, involve an inventive step, and are capable of industrial application. It also sets out the terms and conditions for the grant and exploitation of patents.
Under the Indian patent system, the grant of a patent gives the holder the exclusive right to prevent others from making, using, selling, importing, or offering for sale the patented invention in India. The term of the patent is generally 20 years from the date of filing the patent application. The Act also provides for compulsory licensing, which allows third parties to use a patented invention without the consent of the patent holder, in certain circumstances, such as in cases of public health emergencies.
The patent system in India has undergone several changes since the enactment of the Patents Act 1970. In 1995, India became a member of the World Trade Organization (WTO), which requires member countries to comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As a result, India amended its patent laws to comply with the TRIPS Agreement. The amended Patents Act, which came into force in 2005, introduced product patents for pharmaceuticals and chemicals, and provided for the patenting of microorganisms and software. The Act also included provisions for pre-grant and post-grant opposition to the grant of patents.
The patent system in India has been subject to criticism and controversy, particularly in relation to the grant of patents for pharmaceuticals and the use of compulsory licensing. Some have argued that the system does not do enough to encourage innovation, while others have praised it for allowing access to affordable medicines.
In India, the patent system is governed by the Patents Act, 1970, which provides for the grant of patents for inventions that are new, non-obvious, and capable of industrial application. The Indian patent system operates on a first-to-file basis, which means that the first person to file a patent application for an invention is entitled to the patent, provided the invention meets the criteria for patentability.
The Indian patent system grants both product and process patents for a wide range of inventions, including pharmaceuticals, biotechnology, software, and mechanical devices.
The patent application process in India involves filing a patent application with the Indian Patent Office, which examines the application to determine whether the invention meets the criteria for patentability. The examination process includes a search for prior art and an evaluation of the novelty, non-obviousness, and industrial applicability of the invention.
Once a patent is granted, the patentee has the exclusive right to prevent others from making, using, selling, or importing the patented invention without their consent. The patentee can also license the patented invention to others for a fee.
Patentability
Patentability refers to the criteria that an invention or discovery must meet in order to be granted a patent. In general, an invention is considered patentable if it meets certain requirements such as novelty, inventive step, and industrial applicability. The invention must be new and not obvious to a person having ordinary skill in the relevant field of technology. It must also be capable of industrial application, meaning it can be made or used in any kind of industry. Additionally, the invention must not be excluded from patentability under the law, such as for being contrary to public policy or morality. Meeting these requirements is crucial for obtaining a patent and enjoying exclusive rights over the invention for a certain period of time.
In general, the criteria for patentability are similar across countries. However, there may be some differences in how these criteria are interpreted and applied in different countries, including India. For example, India has specific provisions in its Patents Act 1970 related to the patentability of certain types of inventions, such as pharmaceuticals and software. Additionally, India has faced criticism in the past for its approach to patentability, particularly with regards to Section 3(d) of the Patents Act, which sets a high bar for the patentability of incremental innovations or modifications to existing products.
Process & Product patent
A process patent refers to a type of patent that grants the patent holder exclusive rights to a specific process or method of doing something. This means that no one else can use, manufacture, or sell the same process or method without the permission of the patent holder. Process patents are commonly used in industries such as chemicals, pharmaceuticals, and manufacturing, where a specific process or method can be a valuable asset.
On the other hand, a product patent refers to a type of patent that grants the patent holder exclusive rights to a specific product or invention. This means that no one else can manufacture, use, or sell the same product or invention without the permission of the patent holder. Product patents are commonly used in industries such as technology, biotechnology, and pharmaceuticals, where a specific product or invention can be a valuable asset.
Filing of the patent
Filing a patent is the process of submitting a patent application to the relevant patent office for examination and potential grant of a patent. The patent application must include a detailed description of the invention, along with any necessary drawings or diagrams. The filing process usually involves paying a filing fee and may also require additional fees for examination, search, and other services.
Once the patent application is filed, it undergoes a review process by a patent examiner to determine its patentability. The examiner will review the application to ensure that the invention meets the requirements for patentability, such as novelty, non-obviousness, and utility.
If the examiner determines that the invention meets the patentability requirements, the patent will be granted and the inventor will be issued a patent certificate. The inventor can then enforce their exclusive rights to the invention, which typically include the right to prevent others from making, using, selling, or importing the invention without permission.
Patent specification
A patent specification is a legal document that describes the invention in detail and defines the scope of the invention for which patent protection is sought. It should include a written description of the invention and at least one claim that defines the technical features of the invention. The specification should be clear and complete enough to allow someone skilled in the relevant field to be able to understand and reproduce the invention. The patent specification is a crucial part of the patent application process and must be drafted with great care and precision to ensure that the invention is fully protected.
Patent claims
Patent claims refer to the specific language used in a patent application to describe the invention and define the scope of the patent protection being sought. They are a crucial part of the patent specification, as they determine what aspects of the invention are protected by the patent.
Patent claims can be either independent or dependent. Independent claims stand on their own and do not rely on other claims in the patent application, while dependent claims refer back to a previous claim and add additional limitations or specifications.
The language used in patent claims must be clear and concise, and must accurately describe the invention in a way that distinguishes it from prior art. Patent claims are subject to examination by patent examiners, who may require modifications or clarification of the language used in the claims.
Patent claims can also be challenged through patent opposition proceedings, in which third parties can challenge the validity or scope of the claims. In some cases, patents may also be subject to revocation if it is determined that the claims are not valid or were obtained through fraudulent means.
Patent opposition, & Revocation
Patent Opposition is a legal process that allows anyone to challenge the validity of a granted patent before a specialized authority. This is usually done by filing a petition or opposition within a specified time period after the grant of the patent. The opposition process allows interested parties to present evidence and arguments against the validity of the patent.
Patent Revocation, on the other hand, refers to the cancellation of a granted patent. This can be done either through a court proceeding or through an administrative process. A patent can be revoked on several grounds, such as lack of novelty or inventiveness, insufficient disclosure, or fraudulent representation. Patent revocation can be initiated by anyone who has an interest in the patent, such as a competitor or a licensee.
Infringement
Infringement refers to the unauthorized use, manufacture, sale, or importation of a patented invention or process. In other words, if someone other than the patent owner makes, uses, or sells a product that is covered by a patent, they may be liable for infringement.
Infringement can occur even if the infringer did not know that the product was patented or if they were not aware that they were infringing on someone else's rights. The patent owner can take legal action against the infringer to stop the infringing activity and seek damages for any losses suffered as a result of the infringement.
It is the responsibility of the patent owner to monitor and enforce their rights against potential infringers. If they become aware of any potential infringement, they should take appropriate action to protect their patent rights.
Compulsory licensing
Compulsory licensing is a legal mechanism by which a government allows a third party to produce and sell a patented product or process without the permission of the patent holder. This is usually done to address a situation where the patented product or process is not available to the public at a reasonable price, or where there is a shortage of supply.
Under compulsory licensing, the government grants permission to a third party to manufacture the patented product or process on the payment of a royalty to the patent holder. This mechanism is also used in cases of national emergency, public health crises, or other circumstances where the public interest demands access to a patented invention.
Compulsory licensing is governed by international agreements, such as the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as national laws and regulations. In India, for example, the Patents Act provides for compulsory licensing in certain situations, subject to certain conditions and procedures.
Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) is an international treaty that simplifies the filing and prosecution of patent applications across multiple countries. It was signed in 1970 and entered into force in 1978. The PCT is administered by the World Intellectual Property Organization (WIPO) and currently has over 150 member countries.
Under the PCT, an applicant can file a single international patent application with a single patent office, which will be considered as a pending application in all PCT member countries. This allows applicants to delay the cost of filing patent applications in multiple countries until a later stage, typically after they have received a positive patent examination report.
The PCT also provides for a standardized international patent search and examination process, which can be used to identify potential patentability issues before filing national patent applications. Additionally, the PCT provides for a mechanism for international publication of patent applications, which can be useful for licensing and commercialization purposes.
It is important to note that the PCT does not result in the grant of an international patent, but rather serves as a mechanism for simplifying and streamlining the process of filing and prosecuting patent applications in multiple countries. Once a PCT application enters the national stage, it is subject to the patent laws and regulations of each individual country in which protection is sought.
Patent Search
A patent search is a process of searching existing patents and published patent applications to determine if an invention is novel and non-obvious. The main purpose of a patent search is to identify prior art, which refers to any public knowledge or information that could potentially affect the patentability of an invention. A patent search can be conducted online or through specialized patent search databases. It is important for inventors and patent applicants to conduct a thorough patent search before filing a patent application to avoid infringement issues and increase the chances of getting their patent granted.
Patent Database
A patent database is an online collection of information about patents that have been granted or are pending around the world. These databases contain detailed information about patents, including the names of the inventors, the title and description of the invention, and the legal status of the patent.
Patent databases are important tools for patent attorneys, inventors, and researchers who want to conduct a patent search to determine if a particular invention is novel and non-obvious. There are several patent databases available online, including those maintained by national and international patent offices, private companies, and academic institutions. Some of the most popular patent databases include the United States Patent and Trademark Office's (USPTO) database, the European Patent Office's (EPO) database, and the World Intellectual Property Organization's (WIPO) database.