Patents

Patents and Rights Laws in India

Innovation plays a key role in the economic development of any nation. In recent years, there has been an increase in IPR awareness as well as in the perception to protect one’s innovation in India. This increased awareness has consequently led to a gradual rise in the number of patent applications being filed in India. According to numbers as indicated in the Intellectual Property Annual Report 2018-19, patent filing in India has increased by 5.1% from 2016-17 to 2017-18.

The Chief Administrator of the patent system in India is the office of the Controller General of Patents, Designs and Trademarks (‘CGPDTM’) functioning under the aegis of the Department of Industrial Policy and Promotion (‘DIPP’), Ministry of Commerce and Industry. The Indian Patent Law is primarily governed by the Patent Act, 1970 which was further amended in the year 2005 and the newly amended Patent Amendment Rules, 2019.

The term patent as defined under the Indian Patent Act 1970, means a patent for any new invention, granted for a new product or process, involving an inventive step and capable of industrial application.

In simple words, Patents can be understood as ‘an exclusive statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange for full disclosure of his invention’. Patents are a type of statutory rights that give a monopoly to exclude others, from making, using, selling, offering for sale, or importing the patented product or process for producing that product for the aforementioned purposes without the consent of the patentee.

The invention is also defined under Section 2(1)(j) of the Indian Patents Act 1970 as ‘ a new product or process involving an inventive step and capable of industrial application’.

In order to be a patentable subject matter, the invention is required to meet the following patentability criteria:

• It should be novel.
• It should have inventive step or it must be non-obvious
• It should be capable of Industrial application.
• It should not fall within the provisions of sections 3 and 4 of the Patents Act 1970.

An inventive step as defined under the act means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both, which is not obvious to a person skilled in the art.

A new invention as defined under the act means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.

What is industrial applicability?

In relation to an invention, industrial applicability means that the subject matter of the invention must be capable of being made or used in any kind of industry. Industry in this connection is understood not in the legal or economic meaning but in the primary signification of action or enterprise of fashioning and utilizing nature and matter for the production of goods or of technical results. Thus industry means any kind of activity including agriculture. 

Non-Patentable Inventions- India

Sections 3 and 4 of the Patents Act 1970 specify the inventions that are not patentable in India. These are:

• An invention that 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 a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use 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. For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;

• A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
• The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
• A method of agriculture or horticulture;
• Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any 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 micro­ organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
• A mathematical or business method or a computer program per se or algorithms;
• A literary, dramatic, musical, or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
• A mere scheme or rule or method of performing a mental act or method of playing the 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 a traditionally known components or components
• An invention relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy Act, 1962

The Indian laws and rules are continuously being revamped to incorporate provisions that encourage innovation, particularly by Startups, MSMEs, and female entrepreneurs, thereby making the Patenting regime in India conducive and favorable for innovators.

In a nutshell, a patent is an exclusive statutory right granted by the state for an invention that is new, involves an inventive step, and is capable of industrial application. A Patent owner is given an exclusive right to prevent others from making, using, selling, offering for sale, or importing a process or product(s) in respect of which the patent has been granted.