Introduction To Intellectual Property
Intellectual property is considered to be the most essential element for
economic development of a country.
What's the point of having a distinctive idea if anyone can utilize the same for
his/HER advantage? Ideas, there CAN BE ONLY two ways of protecting your ideas,
either not disclosing them at all, or taking a more logical and practical step
that is to protect it under intellectual property rights.
What Is An Intellectual Property?
Intellectual property is a combination of two words: the first one is
intellectual that derives its origin from the word intellect and the other one
is property IP's main focus is essentially towards manifesting an environment
under which inventions along with creativity can make its way, not leaving
behind the goal of striking a fair balance, between the interests of developers
and the wider public interest,
The Distinction between physical property and intellectual property
Intellectual property can't be understood through its physical parameters, its
evolving day by day
is not a new word, in today's world we hear about this more often
than anytime before, the word 'invention' is the next word that comes to our
mind while talking of patents, so what is an invention? In simple language an
invention may be defined as creating something new which has never been created
before, another word pops out here and that's none other than 'discovery', which
can be understood as actively finding a new aspect out of a previously existing
To invigorate inventions of manufacturers Act VI of 1856 was introduced as the
first patents related legislation in India, the same was repealed by Act IX of
1857 on account of disapproval by the British crown, based on the United
Kingdom Act of 1852 the Act XV of 1859 was introduced emphasizing exclusive
privileges, The Patterns and Designs Protection Act
under Act XIII of 1872
was introduced granting protection concerning designs which was further amended
in 1883 (XVI of 1883) to introduce a provision to protect the novelty of the
The Indian Patents and Designs Act, 1911, (Act II of 1911) replaced all the
previous Acts, for the first time patent administration was under the control of
the Controller of Patents. This act then gone through amendments following the
years in 1920, 1930, and then again in 1945 to remain coetaneous with the laws
enacted in the U.K. after independence there was a crucial need to enact
exhaustive patent laws following substantial economic needs of the country.
Based on the recommendations by the committee under the Chairmanship of Justice
(Dr.) Bakshi Tek Chand, the act was amended in 1950(Act XXXII of 1950) and was
further amended in 1952 (Act LXX of 1952) with the provisions of "compulsory
licensing "about food and medicine, surgical and curative devices, etc.
Patents act 1970 was introduced on the recommendations of the committee under
the chairmanship of Justice N. Rajagopala Ayyangar Committee
The patents amendment act, 1999 provided for filing of applications for product
patents in the areas of drugs, pharmaceuticals, and agrochemicals through such
patents were not allowed, with certain exceptions.
Patents (Amendment) Act, 2002 (Act 38 0f 2002) introduced new Patent Rules,
2003 the Patents (Amendment) Act 2005 (Act 15 Of 2005 ) was brought into force
Invention in layman language can be understood as materializing of ideas.
There was an interesting observation made by the Delhi High Court in the case of
Thompson Brandt Versus Controller of Patents and Designs concerning inventions,
The court made an interesting observation, Considering
the question what is an. 'invention', it was interpreted in
the case of Raj Parkash v. Mangat Ram Choadhary and Ors.
, AIR 1978 as under:
"Invention is about discovering something which is not discovered priorly by
somebody else, it's need not to be complex in nature, its inventor must most
importantly should be the first to adopt it"
Yahoo Inc. v. Assistant Controller of Patents & Anr.,
Section 3(k) talks about non-patentability, in case the concerned subject-matter
is devoid of falling under as an invention and thus is non-patentable, or if
it's set aside bt section 3 of the act, then in that scenario none of the other
objections are worth considering.
Criteria's to obtain Patent Protection
Obtaining a patent is not a 'cake walk.' It needs to fulfil certain pre:
- Analyzing whether the concerned invention is 'useful': invention must
have an applicability on industrial basis or it must be taken into usage for
- Novel: Before filing a patent, it needs to be assured that the invention
must be new and which hasn't been published in the country or elsewhere.
- Non obvious: If Any ordinary skilled person can make use of that Invention it
is non-patentable, so an invention must be non-obvious.
Invention Under The Patents Acts
- An invention" can be either a new product or process which involves an
inventive step and is capable of industrial application
- A new invention" conveys any invention or technology which has not been
anticipated by publication in any document or used in the country or elsewhere
in the world before the date of filing of a patent application with complete
specification, i.e., the subject matter has not fallen in the public domain or
that it does not form part of the state of the art;
Amendments In The Patents Acts And Rules Governing Patents
The patents act 1970 was first amended by the patents(amendment act 1999) which
was further amended by the patents amendment act 2002 and lastly by the patents
amendment act 2005.
Patent rules 1972 were also amended subsequently in the years 1999, 2003, and
Objects Of Patent Laws
- Recognition and registration of patents on a wide scale promotes invention and
- Trade secrets remain secret until the owner actively or willingly puts them in
the public domain or sometimes, unfortunately, it comes out through an
infringer, Patents on the other hand somehow induce or encourages an inventor to
disclose his discoveries as he is obliged to put forth all the necessary
- Once the invention is commercially active, Patents offers a reward for the
expenses of developing inventions.
Advantages To The Patentee
- The owner gets the absolute rights over his invention
- He holds legal remedy against infringers
- He also gets monetary reward for granting licenses to others
- He can also earn money from his invention on a Royalty basis.
- All the inventions are not patentable there are some inventions which the law
doesn't approve of falling within the definition of an invention and the same
getting patented section 3 under chapter 2nd of the patents act deals with the
Obtaining A Patent
- Chapter 3 (sections 6-11) deals with the filing of an application or
obtaining a patent and chapter II deals with the examination of that
application, for obtaining a patent an application needs to be moved by an
actual inventor or assignee of the right or a legal representative in case
of a deceased person
- The importance is given to the applicant who applies first, Applicant is
required to provide a provisional specification or a brief specification
regarding the invention.
- A Complete specification is demanded within twelve months of filing a patent and
the applicant needs to provide the know-how or technical info.
- The Patent examiner then examines the application, and ensures that the same
invention shouldn't have been published earlier, he then communicates the
objections in any, to the applicant.
- The applicant is required to clear all the objections, the objection mainly
revolves around the drafting of the specifications and generally, the applicant
overcome these types of objections by amending the description of his
invention If the applicant chooses to amend the specification the
application for amendment must clarify all the relevant facts in the support of
the application so filed
- When the comptroller accepts the complete specification he advertises the same
in the official gazette, The applicant can't institute the infringement
proceedings from the date of acceptance to the grant of patent.
Legal Remedy Against Infringement
As far as the infringement of a patent is concerned presence or absence of an
'intention' to infringe is not given paramount importance, in case the defendant
claims lack of 'knowledge' on his part The onus remains on the defendant to
prove his innocence, if he does so, the defendant is not held to be liable to
pay damages or profits.
Infringement can't be proved where the patent is not given a distinctive number
merely the word 'patented' proves no infringement.
If the defendant has put in use the essential feature/process that is the
subject matter of the patented invention then it comes under infringement, the
patentee defines the 'subject-matter' in his claim of infringement.
Gillette Safety Razor Co v Anglo American Trading Co Ltd
, where the defendant
claimed that an alleged infringement was obvious, Gillette defence has been used
in various cases to prove the lack of 'novelty' a 'Gillette defence' is based on
the concept that the infringement is not novel is a win-win situation if
effectively deployed. If a substantial or patentable variation is not made to a
currently existing patent, then there is a good cause to claim its
District court and the high court deals with the infringement cases where they
exercise their jurisdiction.
Code of civil procedure is applicable while dealing with the infringement cases,
the High Court is empowered to make Rules to regulate the exercise of original
civil jurisdiction under Section 129 of the CPC 
Importance of expert evidence in the courts to understand the technical know-how
about an invention or the machinery.
Bajaj Auto Ltd vs TVS Motor Company Ltd This case was heard in Madras high
court where the issue of delay of years in disposing of the cases was taken into
notice and the court directed the other courts for speedy disposal of the cases
concerning copyright infringement The parties often get caught in getting an
order for a temporary injunction. The court suggested that the proceedings
related to such cases be carried on a day to day basis and decision be announced
within 4 months of the initiation of the proceedings.
An interlocutory injunction is a court order that either impels or restricts a
party from doing certain acts, It's an order made at an intermediate stage while
the trial is still pending in the court, and is usually issued with the motto
of maintaining the status quo until judgment can be made, in case of patents
the patentee can urge the court to direct the defender to stop from
producing/manufacturing certain goods which the patentee alleged the defender of
infringing the patent.
If the defendant manifests that his product/process doesn't infringe the patent
or if attacks on the validity of the patent, then, in that case, the
Interlocutory injunction will not be granted, While dealing with the injunction
proceeding if the patent is found to be old/established then in those cases
there is a presumption that the patent is a valid one, and then challenging the
validity of the patent is not that easy on the defendant's part, and an
injunction against a recent infringer is issued.
This doctrine can be understood as, if an employee possess certain clandestine
information regarding the product or process or 'Trade secret' what we will call
in the world of Intellectual property, then he needs to prohibit himself from
disclosing that information to his new employer,
In American Cyanamid v. Ethicon Ltd. Lord Diplock
stated the honourable
court must satisfy whether the plaintiff succeeds or not in enabling his right
to a permanent injunction, and he needs to be sufficiently compensated for the
loss incurred by him due to the defaulting acts of the defendant amidst the
time-frame of the filling of the application and that of trial."
Damages For Infringement
Damages can be provided:
The purpose of the provisions of damages in the patents act is to compensate the
plaintiff rather than punishing the defendant.
Relief for the patentee is granted in form of damages depending on the different
circumstances, for instance, if a patent is exploited where the patentee doesn't
grant the licenses, of the patent then the damages would be calculated on
account of the profits which he would have made if his patent wasn't exploited,
similarly, if a patent grants the license on a royalty basis, the infringer
would have to make the payment he would have done as royalty.
But there are certain exceptional circumstances where no damages are provided:
Innocent infringement on the part of the infringer, infringement did after the
non-payment of the renewal fee within the prescribed time-limit, where the
patents were recognized partially valid, damages to be granted on account of
profits only in certain circumstances, infringement was done before the
amendment of any specifications violation of the same amounted to infringement
if committed after the amending date.
- WIPO (World Intellectual Property Organisation) https://www.wipo.int/about-ip/en/
- Terell on The Laws of Patents 14th Ed. 1994, Sweet&Maxwell
- AIR 1978 Delhi 1, ILR 1977 Delhi 412, 1977 RLR 440
- Patents (amendment act)2005 more in section 2(i) chapter 1
- Patent (amendment act)2005 from (section 6-11) chapter II
- Brian C Ried: A Practical Guide to Patent Law, 2nd Ed.1993, Sweet
- P. Narayana, Intellectual property law (22-23) Third ed. (2001) Eastern
- Chevron Research Co's Patent RPC 580 at 586 approved in SCM
Corporations Appl.RPC 341
- Vol 30, Reports of Patent, Design and Trademark Cases, p 465.
- Terell on The Laws of Patents 14th Ed. 1994 (p/170-171)
- The code of civil procedure 1908, issued on 21st March 1908 http://legislative.gov.in/sites/default/files/A1908-05.pdf
- Bajaj Auto Ltd vs TVS Motor Company Ltd C.S. No. 1111 of 2017
- American Cyanamid v Ethicon  RPC 513 (HL) (Lord Diplock)
- Blanco White, T.A. "Patents for inventions", 5th Ed. , Steve &