File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Understanding Patents in India


The Patents Act, 1970 is the primary legislation governing patents in India. According to Section 2(1)(m) of this Act, a patent is a statutory right conferred by the Indian government to an inventor or applicant, which gives them the legal authority to exclude others from making, using, selling, or importing the patented product or process for producing without inventor consent. The term of every patent granted is 20 years from the date of filing of the application.

  • Origins - The concept of granting exclusive rights to inventors can be traced back to March 19, 1474, with the establishment of the Venetian Patent Statute in the Republic of Venice. This statute is considered the first patent law in the world.
  • Early Days in India (1856-1888) - India's patent law journey began with Act VI of 1856 on the Protection of Inventions, which was based on the British Patent Law of 1852. In 1859, the Act was modified (Act XV), terming these privileges as "patent monopolies" and allowing 14 years of protection from the date of filing the specification. Separate legislation like the Patterns & Designs Protection Act (1872) and the Protection of Inventions Act (1883) followed. Eventually, the laws were consolidated as the Inventions & Designs Act in 1888.
  • The Indian Patents & Designs Act (1911) - The Indian Patents & Designs Act replaced the 1888 Act, providing comprehensive legislation on patents and designs.
  • Amendments in the Late 20th Century (1999-2002) - Significant amendments were made to the patent laws with the Patents (Amendment) Act of 1999, introducing product patent protection in certain fields. This was followed by the Patents (Amendment) Act of 2002, to further align the Indian patent regime with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement.
  • The Patents (Amendment) Act of 2005 - The Patents (Amendment) Act of 2005, effective from January 1, 2005, was a crucial step in bringing the Indian patent regime into full compliance with the TRIPS Agreement. It introduced product patent protection in all fields of technology, marking a significant milestone in the evolution of India's patent laws.

Patent Co-Operation Treaty, 1970

The Patent Cooperation Treaty (PCT), signed in Washington, D.C., United States established an international patent filing system that allows applicants to file a single international patent application instead of filing separate national or regional patent applications. This international application can be filed with a receiving office designated by the PCT, in one language (English, French, or another PCT publication language).

Remarkably, this single application has the effect of a national or regional application in all PCT contracting states designated by the applicant. A key feature of the PCT system is the international search and preliminary examination process. An international search is conducted by one of the major patent offices appointed as an International Searching Authority (ISA).

The ISA prepares an international search report and a written opinion on the potential patentability of the invention. Optionally, the applicant can request an International Preliminary Examination (IPE) to obtain a non-binding preliminary assessment of patentability. The IPE report, along with the international search report, provides a strong basis for national or regional patent offices to make their decisions on whether to grant or reject the patent.

Patentable Subject Matter

Section 29(1)(J), Invention means a new product or process involving an inventive step and capable of industrial application. However, an invention must meet the following"
  1. Novelty: To be eligible for a patent, an invention must be novel, meaning it should not have been disclosed to the public before the date of filing the patent application. The invention should offer something new and inventive, and it should not be a part of the existing knowledge or prior art.
  2. Inventive Step (Non-Obviousness): An invention must possess an inventive step, which means it should not be obvious to a person skilled in the relevant field of technology. The invention must involve a technical advancement or an inventive concept that is not obvious from existing knowledge or prior art.
  3. Industrial Applicability: The invention must have industrial applicability, meaning it should be capable of being made or used in an industry. It should have practical utility and be applicable in any field of technology.

What Can Be Patented?
An invention relating either to a product or process that is new, involving inventive steps, and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non-patentable under sections 3 and 4:
  1. An invention which is frivolous or which claims anything obviously contrary to well-established natural laws;
  2. An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
  3. The mere discovery of scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
  4. The mere discovery of a new form of a known substance which does not result in
    • Enhancement of the known efficacy of that substance or 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 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 re-arrangement or duplication of known devices each functioning independently of one another in a known way;
  7. A method of agriculture or horticulture;
  8. Any process for medicinal, surgical, curative, prophylactic (diagnostic, therapeutic), or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
  9. Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals;
  10. A mathematical or business method or a computer program per se or algorithms;
  11. A literary, dramatic, musical, or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
  12. A mere scheme or rule or method of performing a mental act or method of playing a game;
  13. A presentation of information;
  14. Topography of integrated circuits;
  15. An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components;
  16. Inventions relating to atomic energy;

Who Can Apply For A Patent?
A patent application can be filed either by the true and first inventor or his assignee, either alone or jointly with any other person. However, the legal representative of any deceased person can also make a patent application.

Need for Patent:

  • To protect the creativity of the individual.
  • To protect their invention from being copied.
  • To reward the inventor.
  • To encourage research and development.
  • Encourages technology development.
  • Encourages the establishment of new industries.

Rights of a Patentee:

  1. Section 48 - Exclusive right to prevent third parties from making, using, offering for sale, selling, or importing the patented invention without the patentee's consent.
  2. Section 68 - Right to assign or license the patent to others and transfer the exclusive rights associated with the patent.
  3. Section 104 - Right to initiate legal proceedings against infringement of the patent.
  4. Section 108 - Right to seek relief in the form of injunctions, damages, or accounts of profits from the infringer.

Obligations of a Patentee:

  1. Section 53 - Obligation to pay annual renewal fees to maintain the patent in force.
  2. Section 83 - Obligation to manufacture the patented invention in India on a commercial scale within 3 years from the date of grant of the patent.
  3. Section 84 - Obligation to grant compulsory licenses if the reasonable requirements of the public concerning the patented invention have not been satisfied, or if the patented invention is not available at a reasonably affordable price.
  4. Section 64 - Obligation to provide information and documents related to the patented invention when required by the Controller General of Patents.
  5. Section 109 - Obligation to mark the patented product with the word "patented" and the patent number.
  6. Section 64 - Obligation to disclose any additional information related to the patented invention if required by the Controller General.

Advantages of Patent:

  1. Exclusive Rights: A patent grants the patent owner exclusive rights to prevent others from making, using, selling, or importing the patented invention without their permission.
  2. Monopoly Rights: Patents provide a legal monopoly over the patented invention for a limited period, typically 20 years from the filing date. This monopoly allows the patent owner to recoup their investment in research and development, as well as generate revenue from licensing or selling the patented product or process.
  3. Protection from Competitors: Patents act as a barrier to entry for competitors, preventing them from exploiting the patented invention without the patent owner's consent. This protection can help maintain market share and profitability for the owner.
  4. Licensing Opportunities: Patent owners can license their patented inventions to others, generating revenue through licensing fees and royalties.
  5. Incentive for Innovation: Patents provide an incentive for individuals and companies to invest in research and development by ensuring that their innovations are protected and can generate a return on investment.
  6. Potential for Infringement Lawsuits: If a patent is infringed upon, the patent owner has the legal right to initiate infringement lawsuits and seek remedies such as injunctions, damages, and legal costs.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly