Penal Provisions Under the Patents Act, 1970: An In-Depth Examination

What is a Patent?

A patent is a legal right granted to an inventor for a new and useful invention, giving them exclusive control to make, use, sell, or license it for a limited period—usually 20 years. This prevents others from copying the invention without permission. For example, Google’s PageRank algorithm, the iPhone touchscreen technology, and the medicine Dolutegravir are all patented innovations. Indian examples include Tata Steel’s weather-resistant steel, CSIR’s anti-diabetes drug BGR-34, Cipla’s inhaler device, and the Jaipur Foot prosthetic design improvements.

Overview of the Patents Act, 1970

The Patents Act, 1970, together with the Patent Rules, 2003 (updated in 2005, 2016, 2020, 2023, and 2024), forms the main legal framework for patent protection in India. It covers how patents are granted, protected, enforced, and commercially used. The law aligns with international TRIPS standards while ensuring that innovation does not harm public interest, especially in sensitive fields like pharmaceuticals, biotechnology, and public health. This article explains the Act in a clear, structured, section-wise manner and highlights key amendments, important court decisions, and recent developments shaping India’s patent system.

Chapter I — Preliminary (Sections 1–2)

This chapter introduces the basic scope and key terms of the Patents Act.

Section 1 states that the Act applies across India, including Jammu & Kashmir after 2019, and came into force on 20 April 1972.

Section 2 defines important terms used throughout the law, such as “invention,” meaning a new product or process with an inventive step and industrial use; “inventive step,” meaning something not obvious and showing technical or economic value; and other concepts like new invention, patent of addition, patentable subject-matter, and public use.

Recent updates (2022–2024) under the Patent Rules brought clearer provisions for e-filing, faster examination, recognition of startups/MSMEs, and discussions on AI-assisted inventorship—though India has not yet accepted AI as an inventor (as of 2025).

Chapter II — Inventions Not Patentable (Sections 3–4)

Core Exclusions

Section 3 of the patent law specifically excludes several categories from being patented. These exclusions are designed to prevent the monopolization of fundamental concepts, essential resources, and non-technical methods.

The key categories that cannot be patented include:

• Natural Discoveries (Section 3(c)): The mere discovery of a scientific principle or the formulation of an abstract theory, or the discovery of any living or non-living substance occurring in nature.
• Medical Treatment Methods (Section 3(i)): Methods of surgical, therapeutic, or diagnostic treatment of human beings or animals.
• Plants and Animals (Section 3(j)): Plants and animals in whole or any part thereof, other than microorganisms, but including seeds, varieties, and species.
• Traditional Knowledge (Section 3(p)): An invention which, in effect, is traditional knowledge or aggregation or duplication of known properties of traditionally known components.

Pharmaceutical and Software Exclusions

Specific restrictions apply to pharmaceuticals and computing to prevent “evergreening” and the patenting of abstract ideas:

• New Forms of Known Substances (Section 3(d)): A new form of a known substance is not patentable unless it shows significantly enhanced efficacy (specifically, improved therapeutic effectiveness) over the known substance.
• Computer Programs/Algorithms (Section 3(k)): Mathematical or business methods, computer programs per se (on their own), or algorithms are generally not patentable unless they are claimed as part of an invention that demonstrates a technical effect or solves a technical problem.
• Mathematical or Business Methods (Section 3(m)): Pure mathematical methods or business schemes, rules, or methods of performing mental acts or playing games are excluded.

A key judgment, Novartis v. Union of India (2013), confirmed that minor improvements in known drugs without real therapeutic advantage cannot be patented under Section 3(d).

Section 4 restricts patents for inventions related to defence and national security if their disclosure is considered harmful to the country. No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy Act, 1962.

Applying for a Patent – Simple Breakdown (Chapter III)

Who Can Apply and How

This section covers the basic rules for submitting a patent application.

• Section 6 (Who Can Apply): You can apply if you are the inventor, someone legally representing the inventor, someone the inventor has assigned the rights to (assignee), or a group of joint inventors.
• Section 7 (Application Form): The application must be filed using FORM-1. Since 2016, most applications are submitted using the electronic (e-filing) system.

Key Requirements

• Section 8 (Foreign Filings): If you have filed for the same invention in other countries, you must tell the Patent Office about these foreign applications. Failure to do so can lead to your granted patent being cancelled (revoked under Section 64).
• Section 10 (Specification): This is the core document describing your invention.
  • Provisional Specification: This is often filed first to secure an early “priority date,” which is important if others are working on similar inventions.
  • Complete Specification (CS): This must be filed within 12 months of the provisional. It must fully and clearly describe the invention and disclose the “best method” for performing it.

The Next Steps

• Section 11A (Publication): Your application is normally published for the public to see 18 months after you filed it. You can ask for an earlier publication if you wish.
• Section 11B (Request for Examination): The application will not be examined until you formally request it.
  • You must make this request within 48 months from the date you filed the application (or the priority date).
  • Note on Proposed Changes: A pending 2025 amendment proposes reducing this deadline to 31 months.

Chapter IV — Examination & Opposition (Sections 12–28)

Section 12–14: Examination of Application

Controller conducts examination based on First Examination Report (FER).

Section 25 – Opposition to the Patent

• Pre-grant Opposition (25(1)): by any person.
• Post-grant Opposition (25(2)): within 1 year, by interested person.

Grounds for Opposition include:

• Non-patentability under Section 3
• Prior use
• Insufficient disclosure
• Fraudulent claims

Case Example: Gilead Sofosbuvir (2015) — rejected under Sections 3(d) & 3(e)

In 2015, India rejected Gilead’s patent application for Sofosbuvir under Sections 3(d) and 3(e) of the Patents Act. The Patent Office held that the compound was a known derivative without proven enhanced efficacy and lacked inventive synergy. The decision, influenced by Novartis v. Union of India (2013), reinforced India’s anti-evergreening approach and enabled affordable generics.

Patent Grant and Exclusive Rights (Chapter V)

Grant of Patent

• Section 43 (Grant of Patent): Once all legal and procedural requirements are met, the patent is officially granted, recorded in the register, and publicly announced (published). This formal act establishes the inventor’s exclusive rights.

Rights and Limitations

• Section 47 (Government Safeguards): Even after a patent is granted, the government retains certain powers over the invention. This ensures that the patent doesn’t hinder public interest, specifically:
  • The government has the right to use the invention for its own purposes.
  • The patent doesn’t restrict the use of the invention for the purpose of research or education, or for the production of medicines for government supply.

Section 48 (Rights of Patentee)

• • A patent grants the inventor exclusive rights for 20 years (starting from the filing date) to prevent others from using the invention.
  • These exclusive rights cover:
    • Manufacturing the patented product.
    • Using the product or the patented process.
    • Selling or distributing the product.
    • Importing the product into the country.
  • This term is TRIPS-aligned, meeting international standards.

Section 50–53 – Patent of Addition, Surrender, Term:

Patent Status and Term (Sections 50–53):

1. Term of Patent (Section 53):

• The term (life) of every patent is 20 years from the date the application was filed.

2. Patent of Addition (Section 54):

• A Patent of Addition is granted for an improvement or modification of an invention that already has a main patent.
• Key Rule: The Patent of Addition expires on the same date as the original, main patent, even if it was granted later. It does not extend the overall term.

3. Surrender of Patent (Section 63):

• A patent holder can choose to give up (surrender) their patent at any time by notifying the Controller of Patents.

4. Revocation of Patent (Section 64):

• Section 64 of the Patents Act, 1970 provides grounds for revocation of a granted patent. A patent can be revoked if it lacks novelty or inventive step, is not useful, obtained by fraud, insufficiently disclosed, violates public order or morality, or if the invention already exists in prior art or traditional knowledge.

Chapter VI — Working of Patents and Compulsory Licensing (Sections 82–94)

This chapter ensures that patents are used for the benefit of society and not only for private gain.

Important Case:

Natco v. Bayer (2012) — India’s first compulsory license was granted for the cancer drug Nexavar, because it was priced too high for most patients. This case emphasized public health over monopoly pricing.

Chapter VII — Acquisition by Government (Sections 99–103)

The Central Government may take over a patented invention for public use. In such cases, the patent owner must be paid fair compensation.

Chapters VIII–XV — Enforcement, Revocation, and Appeals

Administrative & Procedural Framework

The overall functioning and efficiency of the Patents Act, 1970, are heavily governed by procedural rules and digital initiatives that aim to make the system faster, more accessible, and modern.

Judicial Landscape Shaping Patent Interpretation

The Indian judiciary has played a crucial role in defining the scope and application of the Patents Act, particularly concerning public health, innovation quality, and mandatory working requirements.

India’s Patent Ecosystem (2025 Snapshot)

The Indian Intellectual Property landscape is experiencing rapid growth and strategic maturity, driven by significant increases in filings and international collaboration.

• Record Growth in Filings: The country registered a record of over 110,000 patent applications during the 2024–2025 fiscal year, reflecting robust innovative activity.
• Key Contributors: Corporations dominate the system, contributing about 65% of all filings. Notably, startups account for 18%, highlighting the success of government support schemes, while academia contributes 11%.
• Global Leadership in Key Sectors: India is now ranked among the top 5 nations globally for patents filed in strategically important fields, including Artificial Intelligence (AI), Electric Vehicle (EV) battery technology, semiconductors, and biotechnology.
• International Collaboration: The Patent Prosecution Highway (PPH) program is actively helping to accelerate examination processes. It is fully active with Japan, in a pilot phase with the US, and is currently under negotiation with South Korea.

Police Role in Patent Infringement

For direct patent infringement, the police have no independent authority to intervene, and enforcement is initiated only through civil proceedings before a competent Civil Court, which may subsequently direct police assistance if necessary to enforce its orders. In the limited instances where the Patents Act prescribes criminal liability, police action is not automatic and can occur only upon a specific order issued by a Judicial Magistrate. Hence, infringements under the Patents Act, 1970 are treated either as civil wrongs or, in the limited criminal instances, as non-cognizable and bailable offences.

Conclusion

The Patents Act, 1970, establishes a carefully calibrated system that successfully encourages innovation while simultaneously safeguarding the public interest, particularly in essential sectors like healthcare. Following key amendments post-2005, the Act has successfully harmonized India’s intellectual property framework with global standards, and recent reforms further emphasize digital efficiency, transparency, accelerated processing for startups, and strategic focus on emerging technologies such as AI, biotechnology, and green technology, positioning India to evolve as a major innovation-driven economy and a global intellectual-property hub.