Development of patent law in India
In India the first legislation in India, relating to patent was the act VI of
1856. The objective of this was to encourage new and useful invention and to
induce inventor to disclose secret of their inventions for the society. This act
was repealed by act IX of 1857 since it was ratified without the approval of the
In 1859, Act XV of 1859 was introduced as first legislation of granting
exclusive privileges. This Act contain certain modification such as grant of
exclusive privileges to useful invention, extension of priority period from 6 to
12 month. However, in 1872, the act of 1859 was merge to provide protection
relating to designs. It was renamed as patterns and designs protection act under
act XIII of 1872 and further amendment in 1883 .i.e. Act XVI of 1883 to protect
novelty of the invention.
Act II of 1911, the Indian patent and designs Act replaced the entire previous
act. For the first time, this act brought patent administration under the
management of controller of patent. In 1920 Further amendment was done to enter
into reciprocal arrangement with UK and other countries for securing priority.
In 1930 further amendment were made to incorporate, provision relating to grant
of secret patents, patent of additional use of invention by government power of
controller to rectify register of patent and increase of term of the patent i.e.
14years to 16 years. In 1945, an amendment were made regarding the filing and
submission of provisional specification and complete specification within 9
After independent, it was fell that the Indian patent and designs Act, the
Indian patent and design act of 1911 was not fulfilling its objective, it was
found desirable to rectify comprehensive patent law. In 1949 A committee was
constituted under the chairmanship of justice (dr.) Bhakshi Tek Chand, a retired
judge of Lahore high court, to review patent law in India.
- The term of reference include
- To survey on the working of the patent system in India
- To examine the existing patent legislation in India and make
recommendation for improving it
- Any special restriction regarding food and machine
- Examine working of patent office and the services
The committee submitted its report on fourth august 1994 and recommended for
prevention of misuse or abuse of patent right in India and suggested amendment
to section 22, 23,23A of patent and design act.
It recommended a clear indication to ensure that food, medicine, and surgical
and curative devices are made available to the public at cheapest price. Based
on this. The act once again amended in relation to working of invention and
compulsory license in 1950
The government of India appointed justice N. Rajagopala Ayyangar Committee to
examine the question of revision of the patent law. The report submitted
comprised of two part, the first part deal with general aspect of patent law and
2nd part deal with several clause of the lapsed bills 1953 and passed in 1970.
This act repealed and replaced the act of 1911; however 1911 act continued to be
applicable to designs
Act of 1970, amended 3 times, after this, the ordinance was later replaced by
the patents (amended) Act 2005 (act 15 of 2005) on April 4th 2005 which was
brought in force from 1st January 2005
Challenges in protecting/ grant of patent right
The India patent Act has specific provisions covered under section 3 that make
the patentability of an invention relating to subject matter such as
- Derivatives of a pharmaceutical drugs
- Patentability of stem cell
- Diagnostic method and kits
- Isolated DNA sequences
- Computer related invention
These provisions are in addition to the global patentability requirement for
invention to have novelty inventive step, and industrial applicability
Challenges in enforcement of patent-right in India
- Computer related invention
Section 3(k) of Indian patent act bars patentability of computer programs per se
or algorithm. This works as default for all computer related invention.
Controller takes the decision on this type of cases and there are no consistent
method, they have their own viewpoints.
- Patentability of derivatives of pharmaceutical substances.
Section 3(d) of Indian patent act restrict patentability of derivative of a
pharmaceutical compound. The derivatives have to show therapeutic efficacy for
patent, section 3(d) objection should be theoretically be raised only for
derivatives of pharmaceutical substances. However, the objection is invariable
raised for all application relating to pharmaceuticals drugs even in the case of
- Patentability in the life science/biotechnology sector
The life science sector faces difficulty in terms of patentability of in-vitro
diagnostic method and kit because they fall within the category of treatment
method. In addition, isolated DNA sequence are also not satisfying the novelty
Patent right in India can be enforced through civil court, but there is no
special IP court to deal with cases.
Compilation of cases and Time to final decision
The basic challenge in the enforcement of patent right is the time it takes for
the court to make a final decision. A lawsuit regarding patent generally take 5
to 7 yr. to final decision after trial. The backlogs of cases and less number of
judicial officers have an impact to decide a case on time.
Experts of the subject matter
Section 115 of Indian patent act provides appointment of a scientific advisor to
assist the court in providing opinions on technical aspect of the matter. This
provision has not been use by the court as much as it should be. In patent
infringement, the expert helps to improve the quality of decision and speedy
Do we need amendment in our patent law?
As we, all know that patent is for the protection of the right of the patent
holder and it provides the guidelines to apply for the patent. So from the above
situation that are coined, I think that the patent act of India needs amendment
in some areas as the nation has developed and to promote more and more invention
and innovation in India.
If we give patent on traditional knowledge that are
present in India from ancient ages of some groups, they can apply for patent as
a group for that whole community. There are many cases where the western world
are getting patent on our traditional knowledge (neem tree case, turmeric case).
We should also promote it for the development of the country and people. We
learn from prior knowledge, but India put a full stop regarding prior knowledge.
India is rich in biodiversity. India can give patent to its plant variety. It
will be beneficial for plant too as it can protect plant and promote
afforestation. It will also increase research and development related to use of
plant in medicine purpose. Although united state grant patent on plant (neem
tree case, turmeric case).
India can also promote patent on computer program or business model. It is also
granted by the United States but India is not granting patent in these, and it
backfire on India's economy.
Ramdev baba's company is based on ayurvadic medicine, but as India is not
granting patent on plant, anyone can use these medicinal herb.
Examination timeline: currently, the examination process for patent application
in India can be slow and unpredictable, leading to long delays in the granting
of patents. Amending the law to set specific timeline for examination.
Compulsory licensing: compulsory licensing provision allow the government to
license a patent to a third party in certain circumstances, such as in the case
of public health emergency. Amending the law and make it available only when
needed not when government want.
Patent term: the patent term in India is currently 20 tears from the date of
filing, regardless of the time taken for examination. Amending the law to
provide for a more flexible patent term, such as 20 years from date of grant,
could help ensure that innovators are rewarded for their efforts while still
allowing for timely submission.
Disclaimer: there is no need of disclaimer in the form as it will be checked on
the later basis and it they found that their is prior art than it will be
The patent law is an essential legal framework that plays a crucial legal
framework that plays a crucial role in promoting innovation and protecting the
right of inventors and businesses. In India, the patent law has been
instrumental in fostering technological progress and driving economic growth, by
incentivizing companies to invest in research and development and allowing them
to monetize their invention. As patent protects the rights of a patent holder,
I think India is more capable than what India is at now, granting patent on
plantation, computer programing, traditional knowledge, etc. will help India in
its growth and development from the ground base. Therefore, government should
think about it and make suitable reforms. Government should make a special court
for IP for early disposal of cases. Despite its many successes, Indian patent
law faces many challenges, including limited patentability criteria, lengthy
granting of patent process. Addressing these issues through appropriate
amendments to the law will be crucial in ensuring the India's innovation
ecosystem continues to thrive and contribute to the country's growth and