Patents, Copyrights and Trademarks

1. Define
a. Copyright: A copyright subsists in a literary work, music, film, artistic work, record, computer
software and radio and television broadcast. Copyright is about right to copy. It vests in the
person who produces the work. In case where a person produces a work for valuable
consideration, it vests in the person paying the consideration. A copyright holder has
exclusive right to reproduce work. Non commercial and uses for public purposes are
exempted from the copyright. A copyright is valid for 60 years.
b. Patents: A patent is a monopoly right in the use of an invention. The person in whose favor a
patent is granted is called a patentee. The patentee can sell, assign or license his right in
patent. Only non-obvious and useful inventions can be patented. Inventions contrary to
public order or morality or which causes serious prejudice to human, animal or plant life or
health or to the environment cannot be patented. A method of horticulture or agriculture,
surgical processes for treating human beings cannot be patented. Compulsory licensing is the
right of the government to put to use a patent in public interest.
c. Trademarks: A trademark is a distinctive sign used by an individual, organizations or legal
entities to identify that the products or services to consumers with which the trademark
appears originate from a unique source, and to distinguish its products or services from those
of other entities. Further to amendment through Trade mark Act 1999, both goods and
services can be registered. The act provides for protection under class of its registration
besides classes of similar goods and services.

2. Procedure for registration of Patents

Application is required to be filed according to the territorial limits where the applicant or the
first mentioned applicant in case of joint applicants for a patent normally resides or has domicile
or has a place of business or the place from where the invention actually originated. If the
applicant for the patent or party in a proceeding having no business, place or domicile in India.,
the appropriate office will be according to the address of service in India given by the applicant
or party in a proceeding.
India notified the Patents (Amendment) Rules 2006, bringing in changes to provide
transparency, decentralization of the functioning of patent offices and simplify the procedures
making them user-friendly. As per the changes notified under the Patents (Amendment) Rules,
2006, patent applications are now to be mandatory published within one month after expiry of
the statutory period of 18 months. In case of request for an early publication, the application is
to be published within one month from the date of request. This step will introduce an element
of certainty regarding the date of publication, which was hitherto not available.
Further, with a view to enforcing transparency and ensuring time bound disposal of patent
applications, definitive time frames have been prescribed for various activities by the patent
offices. A patent application now has to be referred to an examiner within one month of a
request for its examination and the controller will be required to take a decision within one
month of its submission, it said, adding that the first examination report must be issued in six
months of the date of request for examination of a patent.
3. Main features of the Patents Act 1970
There was no product patent for pharmaceuticals, food and chemical based products. These
industrial sectors were covered by process patent only. The term of the patent was 7 years from
the date of application or 5 years from the date of sealing of patent which ever period was
lower. In order to ensure pronounced role of the domestic enterprises in the patented product a
system of ‘licensing of right’ was also provided for the sectors covered by the process patent.
There was no constrained on exports. The patent holder was under obligation of working the
patent. There was also provision for revocation of patent for non-working. For licences of right
the royalty ceiling was stipulated at 4 per cent. The following chart would indicate as to how the
prices of medicines in India are the lowest as compared to other developing and developed
countries.

4. Intellectual Property Laws in India

The Patent system in India is governed by the Patents Act, 1970 (No 39 of 1970) & The Patents
Rules 1972, effective from April 20,1972. Subsequently The Patents Act, 1970 is amended
effective from January 1, 1995 & The Patents Rules, 1972 is amended effective from June 2,
1999. The Patent Office, under the Ministry of Commerce & Industry, Department of Industrial
Policy & Promotion, has been established to administer the various provisions of the Patents
Law relating to the grant of Patents & The Designs Law, relating to the registration of Industrial
Designs. India is member of the following treaties governing patents: Convention establishing
World Intellectual Property Organization (WIPO) Trips Agreement under the World Trade
Organization. Paris Convention for the protection of Industrial Property with effect from Dec. 7,
1998. Patent Cooperation Treaty (PCT) with effective from Dec. 7, 1998.

5. WHAT IS NOT PATENTABLE

1. An invention that is frivolous or that claims anything obviously contrary to well-established
natural laws;
2. An invention the primary or intended use of which would be contrary to law or morality or
injurious to public health;
3. The mere discovery of a scientific principle or the formulation of an abstract theory;
4. 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;
5. 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;
6. The mere arrangement or rearrangement or duplication of known devices, each functioning
independently of one another in a known way;
7. A method or process of testing applicable during the process of manufacture for rendering
the machine, apparatus or other equipment more efficient, or for the improvement or
restoration of the existing machine, apparatus or other equipment, or for the improvement
or control of manufacture;
8. A method of agriculture or horticulture;
9. Inventions relating to atomic energy;
10. In the case of inventions relating to substances prepared or produced by chemical processes
(including alloys, optical glass, semiconductors and inter-metallic compounds) & substances
intended for use or capable of being used as food. No patent will be granted in respect of
claims for the substances themselves, but claims for the methods or processes of
manufacture will be patented.
6. The Patent Act, 1970:
The Patent Act, 1970 The Patent Act, 1970 came into force on 20.4.1972 replacing Indian
Patents and Designs Act, 1911. When India became independent, the Govt. of India appointed
the Patent Enquiry Committee under the Chairmanship of Dr. Bakshi Tek Chand, a retired Judge
of Lahore High Court in 1949 with a view to ensure that the Patent system was more conducive
to national interest. The committee submitted its final report in April 1950. In 1957, Govt. of
India further appointed Justice N. Rajgopalan Ayyanger to examine and review the Patent law in
India who submitted his report in September 1959 recommending the retention of Patent
System despite its shortcomings. The Patent Bill, 1965 based mainly on his recommendations
and incorporating a few changes, in particular relating to Patents for food, drug, medicines, was
introduced in the lower house of Parliament on 21st September, 1965. The bill was referred to a
joint committee of Parliament on 25th November 1965. Finally the bill was cleared by the
Parliament and became law known as the Patents Act, 1970 after more than two decades. The
present law was suited to changed political situation and economic needs for providing impetus
to technological development by promoting inventive activities in the country. The present Act
contains XXIII chapters, which are relating to Patenting procedure, International arrangement
and other misc. matters. This Act is regulated by the Patents Rules, 1972 which inter alia include
Five Schedules concerning with fees, forms etc. Under the existing Act the Government of India
is authorized to make rules for carrying out the purposes of the Act and regulating the Patent
Administration and accordingly Govt. brought into force Patents Rules, 1972 w.e.f. 20.4.1972.
These Rules were amended on 2.6.99, under the present Act and rules in addition to grant of
Patents. Provisions of grant of EMR have also been provided. There are five Schedules to Patents
Rules, 1972; the First Schedule prescribes the fees to be paid in respect of any matter arising out
under the Act. Where any form specified in the Second Schedule to the Patents Rules, 1972, it
shall be accompanied by specified fees or where payment is made within a prescribed period of
time after the forms have been filed, the specified fee shall be paid within that period. The texts
of various forms required in connection with activities under the Patents Act, 1970 are set out in
this schedule. These forms must be used wherever required and they are not to be modified
without the consent of the Controller. The Third Schedule prescribes form of Patent that to be
granted. The Fourth Schedule prescribes various types of costs to be awarded in various
proceedings under the Act. As stated above, the fifth schedule specifies certain amendments to
the Indian Patents & Designs Rule, 1933. The Patents Act, 1970 in comparison with Indian
Patents and Designs Act, 1911 has far more reaching effect in some areas such as food, Drug
and Medicines where all the patents granted under this category and deemed to be endorsed
with the words “Licence of Right”. Further the term of Patents related to Food, Drug &
Medicines is seven years from the date of Patent or 5 years from its grant whichever is less.
More elaborate definition of invention has been provided. However, inventions relating to
methods or processes of their manufacture are patentable. The area of search for novelty has
been extended to any documents published anywhere in the world. The provisions for appeals
to the High Court from the decision of Controller have also been provided. The provision for
grant of compulsory license, license of right and revocation of Patent on the ground of
nonworking has also been incorporated. Many of these provisions are kept in line with the
development of Patent law in developed countries, particularly Great Britain. The major
departure is in the reduction of the term of patent for the invention relating to the drug,
Medicine & food and abolition of Product patent per se for Drug, Medicines, Food and
Chemicals. The chapter XXII provides international arrangements with the countries outside
India, which afford to the applicants for Patents in India or citizens of India, similar privileges as
 are granted to its own citizens in respect of grant of Patent and the protection of their patent
rights. Accordingly the Central Govt. may by notification in the Official Gazette declare such
country/countries to be a conventional country/countries for the purpose of the Act. India has
become a member of the Paris Convention and PCT w.e.f. 7.12.1998 and by virtue of this, the
Head Office of Patent Office & its Branch offices have become receiving offices for the purpose
of international applications filed under PCT. In view of these developments, the Patents Rules,
1972 have been amended by incorporating a new chapter IIA dealing with international
application which can be filed at Head office of the Patent office at Calcutta or Branch Offices at
Delhi, Chennai & Mumbai w.e.f. 17.11.99 as applicable. The present Act under Chapter IVA
provides specific provisions for the grant of EMR (Exclusive Marketing Rights) with a view to
fulfill its international obligation under the provisions of article 70.8 & 70.9 of TRIPs agreement
which are in force w.e.f. 1.1.1995.

Intellectual Property Rights – Important Laws, Rules and Regulation

1. Industrial Development and Regulation Act 1951

a. Protection to investments by the government initiated industries
b. Prevention of private sector into production of goods and services.
2. Foreign Exchange Regulation Act (FERA)
a. Control the flow of the currency in and out of India
b. Control over exports and imports.
3. Trade and Merchandise Marks Act 1956
a. Creation of trademarks registrar based in Mumbai.
b. Allowing registration within a particular class of goods.
4. The Patents Act 1970
a. Deals with patenting of inventions.
b. Creation of the Controller of Patents (HQ Kolkata).
c. Distinguished between product patent as opposed to process patent.
d. Compulsory licensing of the invention for production within three years.
5. Copyrights Act 1957
a. Protection against right to copy of art, literature, music, films and computer programs.
b. Copyright is given over material form of expression and not the idea.
6. Trade Mark Act 1999
a. Incorporated seven classes of services.
b. Trademarks shall be valid for 10 years.
c. Protection across classes of goods and services.
d. Special protection to well known trademarks.
7. Patents Rules 2002
a. Requisite forms and rules governing acquiring Patents.
b. Concept of “Licenses of Right” is abandoned.
c. Process patents have been done away with.
8. Biological Diversity Act 2002
a. Protects rights of breeders and innovator of new forms of seeds and plants.