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
IPR
• 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”
IPR
• 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
PATENTS
What is 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.
Who can get a Patent?
Patent can be granted to any individual, person/entity

PATENTS
Patents Act 1970 – Patent is a grant for limited time
period 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.
PATENTS
Requirements of a Patent
1. New – Novelty requirement

2. Useful – Utility requirement
3. Non-obvious
Different from Subject Matter of Patents

PATENTS
Requirements of a Patent
1. New – Novelty requirement

2. Useful – Utility requirement
3. Non-obvious
Different from Subject Matter of Patents

PATENTS
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”
PATENTS
Need 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
PATENTS
Utility – 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.
PATENTS
Non- 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 1970

The 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 horticulture
6 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.
PATENTS
Non-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,
PATENTS
Improvements 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
PATENTS
Kinds 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
PATENTS
Indian 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.
PATENTS
Remedies 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
PATENTS
Norms 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
PATENTS
Procedure 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 rights
of 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.
Amendment of Applications
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.
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)
Compulsory Licenses (cont.)
Section 84
The law provides for compulsory license under section 84 of

the 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.
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.
Register Of Patents
• 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.

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Social & Legal Issues

Intellectual Property Rights

• Property works on the principle of exclusion.

Protection of Intellectual Property

"Understanding and nurturing

• In fact IPR has a different meaning from

Trade Related Intellectual Property Rights

The Agreement on Trade Related Aspects of

Different Laws on Intellectual Property

INTELLECTUAL PROPERTY LAW

Who can get a Patent?

Patent can be granted to any individual, person/entity

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

What is granted Patent protection?

The owner of the Patent is called the Patentee, and it gives

Why is Patent protection provided?

Incentive for creation

“patent law is to encourage scientific research, new

Caveat of Patent grant

In order to secure a Patent right, the Patentee must

1. New – Novelty requirement

Different from Subject Matter of Patents

1. New – Novelty requirement

Different from Subject Matter of Patents

Section 2 (1)(j) of the Patents act of 1970, states that

How to establish Novelty? We review ‘Prior Art’.

Example – The contention over the patent

The patent is only granted to those Inventions that can be

This is unique to India specially, we do not grant Utility

This implies that the invention for which Patent is

Example – if a person comes up with a new tool, which

Patents Act 1970

Section 3 of the Patents Act of 1970 expressly

Any improvement of existing Subject Matter can be

Combination of Existing Subject Matter

Can be patented if,

A mere simple combination of 2 or more

1. Product Patent – granted on the final

The Patent Act used to only grant of Process Patent in

India must comply to the norm of granting product patents

Civil remedy provided

First to Apply norm applies in India

True and First Inventor

Patent Filing Procedure

Section 6 – Who May apply?

Inventor, Assignee, or legal representative

“Works under course of employment”

Filing of the prescribed form

Provisions for secrecy of Patents

When in respect of an application for a patent it

Grant Of Patents and Rights Conferred

The controller is empowered to allow the application

• To prevent the abuse of patent as a monopoly and to

The law provides for compulsory license under section 84 of

(1) A patentee may, at any time by giving notice in the prescribed

• Subject to the provisions contained in this act a patent,

• The act also provides revocation of patent by the central

• A register of patents shall be kept at the patent office.

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