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Patent Law in India

Patent Law in India and Patent Registration

A Patent is a statutory right granted to the inventor for a definite period of time by Government of India, in exchange of full disclosure of his invention. Thereby giving the patentee exclusive right to profit from his invention for a set period of time
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Some Important Facts about patent:
# Patent protection is territorial right that means it is effective only within the territory of India.

# An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under section 3 and 4 of the Act.
Patent Forms in India Patent Law Judgments
 
Draft Patent (Amendment) Rules, 2015 changes on the face of it. (Part I)

Patenting of Micro-Organisms in India: The fact that the subject matter of many products of biotechnology is incredibly complex, particularly where the subject-matter is a living organism. Indeed, they have not been constructed by man, such subject matter truly is a "black box" and therefore virtually impossible to describe. Complete disclosure of an invention is a fundamental requirement in order to obtain patent protection. In all other technologies, every aspect of the elements of invention are known.[25] In jurisdictions which allow for the patenting of biotechnology a concession to this fundamental requirement is made, namely, allowing for the deposit of samples of the patented subject matter. Such deposits are part of the "complete description" of the invention and the deposit is said to "supplement" the complete description.

Patentability: What Is Patent?
A patent an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article ensuring that no other person may make, use, distribute or sell any commodity which uses this product or process.

Patent & Its Effect In India:
Though India was not a member of Paris convention, but having signed the TRIPS agreement, India is now obliged to recognise and implement the provision of national treatment to nationals of other members as has been incorporated in the TRIPS agreement. The law of patents has also become an important discipline of international trade and commerce due to great advancement in science and technology, revolutionary changes in computer software development and with the shift from process to product patent, the patent law has been striving to keep pace with the changes in technology. The importance of the subject has grown due to lack of adequate legal literature. The Indian patent system has been modelled on British system to a great extent and the system of the U.S.A to some extent. Meaning and Object of Patent A patent is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time in exchange for the disclosure of the invention.

Challenges to India Patent Regime:
The new patent regime in India touched the hornets’ nest and has raised several contentious issues relating to right to health of the people, which is in conflict with the economic right of patent holders. It is also likely to restrict access of allopathic medicines to only the affluent, affordable and more privileged class of people in India and other countries in the immediate future. The institutions associated with enforcement and protection of right to health of human beings whilst upholding the rights of patent holders are faced with the daunting task and challenge of devising ways and means for fulfilling their defined, designed and desired roles so that the conflict in rights pertaining to rights of intellectual property owners and the right to health of human beings is minimized whilst balancing the prevailing hierarchy of human rights for achieving the social and economic objectives.

Whether Patent Law Protects Biotechnological Inventions:
William Heseltine (President, Human Genome Science) has interestingly noted that trying to patent a human gene is like trying to patent a tree. You can patent a table that you build from a tree, but you cannot patent the tree itself. By signing “Budapest Treaty on the International Recognition of the Deposit of Micro organisms for the Purposes of Patent Procedure”, India can assist in the standardization process of biotechnology pate in the country.

Software Patenting:
With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: "a mathematical method or a business method or a computer programme per se or algorithms". However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.

Pharmaceutical Product Patents:
The monopoly granted by patents to the Drug companies should not be exercised without responsibility. Hence it can be safely said that India having rushed through with the third amendment of 2005 to the patents act without proper parliamentary scrutiny and without having tactfully dealt with issues relating to food, health and technology was not in public interest.

Patenting Recent Biotechnological Inventions:
Patenting within the biotechnological sphere and the subsequent opposition proceedings which have been undertaken by NGO’s such as the Greenpeace, which have become worried by prospects such as the patenting of life, have led courts to highlight the relationship between patents and morality. However it has to be kept in mind that the concept of morality is relative to the values prevailing in society.

Patent Regime And Right To Health:
Patents are not a gift for drug companies to exercise power without responsibility. Given the importance of the issues at stake, the debate concerning the impact of medical patents on access to drugs is unlikely to subside in the near future even though the Patents (Amendment) Act, 2002 has just been adopted. This still leaves several years for further open debate concerning the final response to be given to TRIPS in the health sector.

Patent Amendment Act, 2005:
Patent amendment should be favoured for the patent protection India which will in turn India an ideal center for the research and the domestic manufacturers will be benefited but the loopholes in it should be rectified for the all round development

Patents and Geographical Indication:
India's perspective in WTO regime is to harmonize with national interest and international obligation. But no compromise should be at the cost of public interest. Areas like pharmaceuticals, agro-chemical products should be taken into consideration while changing Indian law as regards to patent. On the international front India should raise its stand to endeavor to curb the exploitative aspects in international patent regime. The geographical indications should also be effectively implemented and efforts should be made at international level to stop abuse of geographical indications.

Geographical Indication And Basmati:
policies have not been framed and hence india cant claim its protection on international level. it can also threat the export of basmati and will have to further face difficulties fighting a legal battle against us patent of basmati. still India has other remedies to claim for its rights over basmati. It can be registered after conducting DNA test and NBGR (national bureau of plant genetic resources ) in Delhi already this task. such test establish geographical relation of plant with the nation. India must do efforts of seeds improvement and germ plasma of basmati and identify our rightful geographical indication.

India In Pharmaceutical Patents Regime:
The following facts are noteworthy to gauge the impact of the introduction of pharmaceutical patents in India:
1. Consistent growth rate of the Indian economy
2. Rising income levels
3. Increasing penetration of insurance on all fronts, especially after allowing entry of private players.
4. For the 60% of the "poor" in India, who currently do not have access to pharmaceuticals, price rise and demand sensitivity due to patent introduction is irrelevant. Thus only a small part of the market will be affected by the new regime.
5. India is governed by a government which relies more on populist politics for survival and this would ensure that the best interests of the population is kept in mind without buckling too much under international pressures. All in all, India stands to gain more in the new patent regime with the inherent costs being marginalized by several factors.

Patenting of Medicines:
Some of the amendments to the Patents Act required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have just been adopted by Parliament. Among the many issues dealt with by the amendments, one of the most debated questions has been their impact in the health sector and more specifically on access to medicines. The debates are unlikely to subside with the adoption of the Bill. On the one hand, the amendments have already been attacked for not going far enough to allow compliance with the TRIPS Agreement. On the other hand, the amendments are fundamentally changing the 1970 Patents Act and are likely to negatively affect people's access to medicines.

The ethics of DNA Patenting:
 DNA patents should be "the exception rather than the rule". "It is not as simple as, 'Patents, good or bad?' or 'Licensing, good or bad? "The mission should be to make sure that all this research benefits people".

Liability of Internet service providers for copyright:
There is a dying need for express provisions either in the Copyright Act or the Information Technology Act, 2000 prescribing liability of service providers for copyright infringement in the light of the issues raised in the paper. Issues concerning ISPs should be taken seriously, because any hesitation over implementing policies or regulation of ISPs can prove detrimental to the development of the institution of Internet as a whole.

Right to Information:
The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists. This was considered a landmark judgment concerning access to information.
Compliance of Trips in Indian Patent Law:
The Indian Patent System has geared up to provide a level playing ground for all stake holders. The recent amendments have brought the national IP Laws close to the TRIPS norms which were the real need to change the scenario prevailed in regard to Patent rights.

Controversy of Section 3(D) of The Indian Patent Act:
Under the Indian Patent Law there are certain inventions which are deemed specifically not patentable. These are defined in Section 3 sub section d of the Indian Patent Act

What is patent
To qualify for a patent, the invention must meet three basic tests. First, it must be novel, meaning that the invention did not
previously exist. Second, the invention must be non-obvious, which means that the invention must be a significant improvement to existing technology.

Is India Geared Up For Business Method Patent:
Patent over a particular invention protects it for a period of twenty years. Thus a patentee acquires an exclusive right over it (subject to Patent Act) and thus has right to prevent infringement of it during the said period.

The Patents (Second) Amendment Bill - An Epilogue:
The Patent (Second Amendment) Bill 2000 has been proposed by the Government to bridge the conflict between the TRIPS and the Patent Act, 1970. Thus, it will be wise to deal with the important amendments proposed by Bill of 2000.

Patent of Addition:
‘Patent of Addition’ falls under Sections 54, 55 and 56 of the Patents Act, 1970. It is an application made for a patent undergoing improvement or modification of the invention described or disclosed in the main application for which the patentee has already applied for or has obtained a patent.

Patent Enforcement Measures in India
Amongst the IP Rights, this situation is particularly true in the area of patents. In India the patent legislation is governed by the Patent Act, 1970. The 1970 Patent Act was an outcome of various previously existing patent legislations including the Patents & Designs Protection Act, 1872, the Protection Of Inventions Act, 1883.

Product Patent and Exclusive Marketing Rights
Indian Patent law permits only process patents in case of food or medicine or drug i.e. the “final” food product or medicine or drug could not be patented. Only the processes manufacturing them could be patented.

Novartis patent claim
In November 2003, The Controller General of Patents & Trademarks of India granted exclusive marketing right (EMR) of Glivec, the blood cancer drug to Novartis A.G., a multinational based in Switzerland. EMR was granted for a period of 5 years in expectation of the product patent regime that was due to be enacted in India by January 1, 2005.

Patents and Geographical Indication:
India's perspective in WTO regime is to harmonize with national interest and international obligation. But no compromise should be at the cost of public interest. Areas like pharmaceuticals, agro-chemical products should be taken into consideration while changing Indian law as regards to patent.

Product Patent for the Indian Pharmaceutical Sector under the TRIPS regime:
The strength of the Indian pharmaceutical industry is in reverse engineering. Such units by utilising the provisions under compulsory licensing and exceptions to exclusive rights under the TRIPS agreement should aim at producing the generic version of the patented product and those that are nearing patent expiry.

India in Pharmaceutical Patents Regime:
The inventor is able to earn higher profits and therefore would likely invest more in R&D and drug discovery and testing, in turn increasing consumer welfare. Also, patent laws require specifications to be disclosed to all and therefore information about new technologies becomes more quickly available to others as an input into their own R&D. Moreover the innovating firm is able to reveal its innovation without losing control and hence can sub-contract parts of the development work at lower cost to countries like India.

Patent Protection in respect to Nanotechnology:
Strong patent protection may spur research and invention, but it may also lead to a patent thicket¨ and expensive litigation over seminal patents. Patent thicket, a phenomenon peculiar particularly in patents in nanotechnology, basically refers to a situation where though a patent is granted to a nanotechnological invention, it becomes unworkable due to the operation of a previously granted patent for a similar invention.

Patentability Criteria:
As far as India is concerned ,it can authoritatively be said that though it is having a quite sensible Patentability Criteria for patenting the inventions in any field of art, which are New ,Useful as well as Non –Obvious (to the person skilled in that Field of Art to which the Invention relates) , but at the same time it shall also be remembered that the Patent Laws in India which were originally enacted in 1970, needs to be further amended as far as the field of Medicines is concerned because the Patent system in India does not affect the rich and the elite class of people but it does affect the availability and affordability of medicines for the poor people who in the developing country like India are caught in a vicious circle wherein the Poor health leads to poverty, and poverty in its turn breeds poor health.

Managing Intellectual property:
The IPR cult in India is still at embryotic stage and the same is misconstrued and misinterpreted. IPR poses very potential revenue generating weapon if explored to the fullest but currently local Globe view IPR as cost incurring and requiring very high maintenance cost hence compromise on hiring competent personnel in the field.

Business Method Patents:
Patent protection for business method patents is available in virtually every major market of the world provided that the business method must utilize some tangible technology such as hardware embedded softwares.

Working of Patents In India:
The local working requirements of the Indian Patent Act are therefore malleable to meet the conditions of the day. The suitability of using such a requirement to facilitate the transfer of technology to India is questionable. Ultimately transfer of technology depends on a whole range of factors and not simply a statutory requirement.

Patentability of Biotechnological in Indian Agriculture
Mutually supported testing of technologies should be encouraged by a change in attitude and mindset in public, public-private or private-private partnerships to address high proportionate initial costs and risks, particularly that of the biotechnological R&D. Active partnerships should be further encouraged in exploring the new tools of applied genomics to understand and improve the biological systems in public interest.

Patent Protection in the field of Nanotechnology:
Nanotechnology is the design, characterization, production and application of structures, devices and systems by controlling shape and size at the nanoscale. It is the understanding and control of matter at dimensions of roughly 1 to 100 nanometres, where unique phenomena enable novel applications.


Managing Intellectual property:
The IPR cult in India is still at embryotic stage and the same is misconstrued and misinterpreted. IPR poses very potential revenue generating weapon if explored to the fullest but currently local Globe view IPR as cost incurring and requiring very high maintenance cost hence compromise on hiring competent personnel in the field.

Business Method Patents:
Business Method Patents are a special category of patents which are granted for an innovative way of doing business. The methods or process which can be patented under this category includes teaching methods, sales skills, financial services, investment services and marketing and advertising methods etc.

Working of Patents In India:
The local working requirements of the Indian Patent Act are therefore malleable to meet the conditions of the day. The suitability of using such a requirement to facilitate the transfer of technology to India is questionable. Ultimately transfer of technology depends on a whole range of factors and not simply a statutory requirement.

Novartis patent claim- case study:
In November 2003, The Controller General of Patents & Trademarks of India granted exclusive marketing right (EMR) of Glivec, the blood cancer drug to Novartis  the right to be the only company that can produce and market the drug in India. Novartis began enforcing the EMR for Glivec by asking for an injunction against generic manufacturers of the drug in the Madras High Court.

Traditional Medicine and Intellectual Property Rights:
Traditional Medicine (TM) plays a crucial role in health-care and serves the health needs of a vast majority of people in developing countries. Access to “modem” health care services and medicine may be limited in developing countries.

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