patent

Social & Legal Issues

Intellectual Property Rights


IPR

• Property works on the principle of exclusion.• Movable Property• Immovable Property• Intellectual Property

Protection of Intellectual Property


"Understanding and nurturing creative thinking is one of the most

important steps we can take to improve ourselves and our world."

-- Marsh Fisher


I P R

• In fact IPR has a different meaning from what we believe it has

• “It is not a field of law, IPR is now the vehicle for industrialisation and global trade. It is the medium for technology transfer and the means for economic development”


I P R

• An intellectual property is any product of the human intellect that is unique, novel, and unobvious (and has some value in the marketplace).

• an idea • invention • expression or literary creation • unique name • business method • industrial process • chemical formula • computer program process • presentation


Trade Related Intellectual Property Rights

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an International Agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of Intellectual Property (IP) regulation.


Different Laws on Intellectual Property

• Patents Act• Copyright Act• Design Act• Trade Mark Act• Geographical indications, including appellations

of origin.• Industrial designs.• Integrated circuit lay out designs.• Undisclosed or confidential Information.


INTELLECTUAL PROPERTY LAW

PATENTS


PATENTSWhat is a Patent?

Who can get a Patent?

It is an instrument which grants a privilege, property or authority.

Patent: monopoly right conferred by the state to an inventor to industrially and commercially exploit his

invention at the cost of disclosing his invention.

Patent can be granted to any individual, person/entity


PATENTSPatents Act 1970 – Patent is a grant for limited timeperiod by the govt. for exclusive rights to use, exercise and vend.

Patent provides to its owner,

Substantive and Economic Rights

1. Control the use, i.e. use himself/give privilege to another

2. Gain monetary benefit


PATENTS

What is granted Patent protection?

Inventions

The owner of the Patent is called the Patentee, and it gives the patentee the right to use the patent as any other form

of property.


PATENTS

Why is Patent protection provided?

Incentive for creation

Fruits of labour

“patent law is to encourage scientific research, new technology and industrial progress. Grant of exclusive

privilege…… stimulates new inventions of commercial utility”


PATENTS

Caveat of Patent grant

In order to secure a Patent right, the Patentee must disclose the invention to the Patent Office

Patent gives the strongest form of protection/grant of rights. Similar to a monopoly

Therefore, the duration of protection is the shortest/limited.


PATENTSRequirements of a Patent

1. New – Novelty requirement

2. Useful – Utility requirement

3. Non-obvious

Different from Subject Matter of Patents


Section 2 (1)(j) of the Patents act of 1970, states that “invention means any new and useful – (a) art,

process, method or manner of manufacture; (b) machine apparatus or other article;(c) substance

produced by manufacturer”

PATENTSSubject Matter of Patents


PATENTSNeed for Novelty - Newness

How to establish Novelty? We review ‘Prior Art’. Prior art implies existing knowledge/technology in that

field. If there is prior mention in the form of use/publication, then there is no novelty

Example – The contention over the patent registration on Haldi (turmeric)

Fomento Vs Mentomore


PATENTSUtility – usefulness requirement

The patent is only granted to those Inventions that can be put to beneficial use i.e have practical applicability.

This is unique to India specially, we do not grant Utility Patents in our country unlike the US. A Utility patent is a grant which protects inventions which may not have immediate/any practical utility i.e. are impossible to be

brought under beneficial use.


PATENTSNon- Obvious

This implies that the invention for which Patent is being claimed, should not be something

known/obvious to a person skilled in the art to which the invention is related to.

Example – if a person comes up with a new tool, which can unhook bolts of every size, the invention will be patented when the invention is dealing with something which is not obvious to a skilled mechanic.


Patents Act 1970The following inventions are not patentable under the act:1 Frivolous inventions or which claim anything obvious or contrary to

well established natural laws.2 Inventions which are contrary to public order or morality.3 Mere discovery of a new form of a known substance.4 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.5 A method of agriculture or horticulture6 A mathematical or business method or a computer programme or

algorithm.7 A presentation of information.8 Topography of Integrated circuits.9 An invention which in effect is traditional knowledge.10 An invention relating to atomic energy.


PATENTSNon-Patentable Inventions

Section 3 of the Patents Act of 1970 expressly excludes –

Inventions which are frivolous, obvious, against public morality, discoveries of scientific principle, discovery of a new substance, substance obtained

by mere mixture, re-arrangement, method or process of testing, method of

agriculture/horticulture, process of medicine, invention related to Atomic energy,


PATENTSImprovements of existing Subject

Matter

Any improvement of existing Subject Matter can be patented if

(1) Improvement leads to another product/process

(2) More useful product or process

(3) More economical product process


PATENTS

Combination of Existing Subject Matter

Can be patented if,

Creates new result or makes the same old result but in a more economical way, expeditious way or with

better results

Concept of Inventive Step


PATENTS

Inventive Step

A mere simple combination of 2 or more elements or any mixing of the nature of

experimentation with out any inventive faculty would not be patentable


PATENTSKinds of Patents

1. Product Patent – granted on the final product

2. Process Patent – granted on the process of manufacture, not the final product

3. Utility Patent – Not applicable in India, granted only to non-useful, but novel

inventions


PATENTSIndian Scenario w.r.t. International Norms

The Patent Act used to only grant of Process Patent in case to inventions related in the field of Food, Medine, Drugs, Chemical processes used for making alloys,

optical glass, semi-conductors and inter-metallic compounds before 2005

WTO Requirements

India must comply to the norm of granting product patents in food and drug industry.


PATENTSRemedies under Patents

Civil remedy provided

Principle of remedy – “Remedy placed where the wrong is committed”

Forms of Remedy

Injunction

Damages

Account of Profits


PATENTS

Registration of Patents

1. Submission of Application

2. Examination of Application

3. Advertisement of acceptance of complete Specification

4. Opposition to grant of Patent to the applicant

5. Hearing of the parties

6. Grant and Sealing of patent


PATENTSNorms of the Patent System

First to Apply norm applies in India

True and First Inventor

“a person who is the first to convert the ideas and scientific principles into a working invention, is the first and true

inventor”


PATENTS

Patent Filing Procedure

Section 6 – Who May apply?

Inventor, Assignee, or legal representative

“Works under course of employment”

Patent granted to employee unless special provision for the same


PATENTSProcedure of Filing

Filing of the prescribed form

Submission of application fee

Provisional/complete specification

Description of best method

Scope of protection claimed

Application must be clear, relating to the single invention and ready for the process of examination


Provisions for secrecy of Patents

When in respect of an application for a patent it appears to the controller that the invention is one of the category notified to him by the central government as relevant for defense purposes then he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information. Such directions shall be periodically reviewed at intervals of six months or on a request made by the applicant.


Grant Of Patents and Rights Conferred• Grant Of Patents: When the application for the patent is

accepted then the controller shall grant the patent .The date of the grant of patent is entered in the register when the patent is granted ,the application, specification and other documents related to the patent shall be open for public inspection.

• Date of Patent : Every patent shall be dated as of the date on which the application for patent was filed.

• Rights of Patentee: The grant of patent confers that the patentee has the exclusive right by himself, his agent or licensees to make, use, exercise, sell or distribute the invention in India. A patentee has the rights to assign or license his rights completely or partially. The exclusive rightsof the patentee last only during the term of the patent. Once the term of the patent expires the patentee can no longer claim exclusive rights.

• Term Of Patent :The term of every patent shall be 20 years from the date of filing of the application for the patent.


The controller is empowered to allow the application for the patent or the complete specification or any document relating thereto to be amended Every such application shall state the reasons and nature of the proposed amendment.If such application is made after the grant of the patent then the nature of the proposed amendment shall be published.

Amendment of Applications


Compulsory Licenses

The Indian Patent Law has provided for adequate powers to the Controller of Patents to issue compulsory licenses to deal with the following extreme and/or urgent situations:

• To prevent the abuse of patent as a monopoly and to make way for commercial exploitation of invention by an interested person.(Section 84)

• Circumstances of national emergency or extreme urgency. (Sections 92 (1) and 92 (3))

• For exports of pharmaceutical products to foreign countries with public health problems. (Section 92 A)


Section 84

The law provides for compulsory license under section 84 ofthe Indian Patent Act, to prevent the abuse of patent as a monopoly and to make way for commercial exploitation of invention by an interested person. Under this section, any person can make an application for grant of compulsory license for a patent after three years, from the date of grant of that patent, on any of the following grounds:

• (a) The reasonable requirements of the public with respect to the patented invention have not been satisfied;

• (b) The patented invention is not available to the public at a reasonably affordable price.

• (c) The patented invention is not worked in the territory of India.

Compulsory Licenses (cont.)


Surrender Of Patents

(1) A patentee may, at any time by giving notice in the prescribed manner to the Controller, offer to surrender his patent.

(2) Where such an offer is made, the Controller shall advertise the offer in the prescribed manner, and also notify every person other than the patentee whose name appears in the register as having an interest in the patent.

(3) Any person interested may, within the prescribed period after such advertisement, give notice to the Controller of opposition to the surrender, and where any such notice is given the Controller shall notify the patentee.

(4) If the Controller is satisfied after hearing the patentee and any opponent, if desirous of being heard, that the patent may properly be surrendered, he may accept the offer and, by order, revoke the patent.


Revocation of Patents

• Subject to the provisions contained in this act a patent, whether granted before or after the commencement of this Act, may, on the petition of any person interested or of the Central Government or on a counter-claim in a suit for infringement of the patent, be revoked by the High Court.

• The act also provides revocation of patent by the central government in public interest.


• A register of patents shall be kept at the patent office.• The particulars regarding the patent, patentee, assignment,

transfer, license shall be entered in the register.• This register shall be open to inspection by the public.• Any person can take extracts of the register on payment of

prescribed fee.• The Appellate Board may on the application of any aggrieved

person make such order for the making variation or deletion of any entry therein as it may think fit.

Register Of Patents

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