153388_indian Patent Law Some Reflections

7/29/2019 153388_indian Patent Law Some Reflections

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INDIAN PATENT LAW: SOME REFLECTIONS

BY

PRAEEN DALAL*

The aim of this article is analyse some of the salient features of the Indian Patent law,

i.e. the Patents Act, 1970. An effort has been made to analyse it in the light of TRIPS

Agreement. India is a signatory to the TRIPS Agreement hence it modified its patentslaw in conformity with TRIPS Agreement. We should also consider the use of

Information and Communication Technology (ICT) for an effective enforcement of

the Intellectual Property Rights in India. It is desirable that more initiatives on the

lines of ICT HELPDESK must be undertaken so that contemporary International

Standards can be adopted in India too.

I. Introduction

The existence of IPRs is very old. The basic aim of conferring an IPR upon the person

owning the same is to give a social recognition to its holder. This social recognition can

further bring economic benefits to its holders. It is just and reasonable to award a personan IPR in the form of limited monopolistic rights for his/her labour and efforts. At the

same time, exceptions in the form of various licences are also made so that public interestcannot be compromised. The public interest and personal interests are thus reconciled in

the form of limited period duration of these rights and their abuses can be tackled

stringently, especially when public interest demands so. The problem of IPRs violationswas not as much in ancient times as it is in the contemporary society. This has happened

due to the advent of information technology (IT) and Conflicts of laws in various

countries. The need of harmonisation of law concerning IPRs was felt at the international

level. Thus, the TRIPS Agreement was formulated to bring basic level harmonisation inIPRs laws all over the world. The provisions of TRIPS Agreement are the most extensive

and rigorous in nature. They protect all the forms of IPRs collectively. The protectiveumbrella of TRIPS covers the following IPRs:(1) Copyright and Related Rights,

(2) Trademarks,

(3) Geographical Indications,(4) Industrial Designs,

(5) Patents,

(6) Layout designs of Integrated Circuits, and

(7) Protection of Undisclosed Information.It must be noted that by virtue of Article 1(2) of the TRIPS Agreements 1, the Control of

Anti-Competitive Practices in Contractual Licences has been excluded from the

1 Praveen Dalal. All rights reserved with the author.

* Arbitrator, Consultant and Advocate, Supreme Court of India.Managing partner-Perry4law (Law Firm, New Delhi, India).

Contact at: [email protected]/ [email protected]

Article 1(2) reads- For the purpose of this Agreement, the term intellectual property refers to allcategories of intellectual property that are the subject of Sections 1 through 7 of Part II. The Control of

Anti-Competitive Practices in Contractual Licences falls in the 8th category; hence it is excluded from the

protective umbrella of intellectual properties.

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mailto:[email protected]/mailto:[email protected]:[email protected]:[email protected]/mailto:[email protected]


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definition of intellectual property. Thus, the TRIPS Agreement covers virtually the

entire gamut of IPRs.

II. Patents Act, 1970 and TRIPS Agreement

The Indian Patents Act, 1970 provides patent protection in India. The same is inaccordance with the provisions of the TRIPS Agreement. The recent conferment of

product patent along with the process patent is an example of such compatibility. The

protection to plant varieties has been excluded from the realm of patent law and aseparate Act has been made for that purpose. Further, the provisions of international

patent application and compulsory licenses are also in conformity with TRIPS

Agreement and Doha Declaration respectively. Thus, the interest of the public at large

has also been taken care of by the Indian Patents Act, 1970 and there is no need of beingpanicked from product patent of medicines. However, there is no need of a further

protection to pharmaceuticals in the form of Data Exclusivity as the protection under

the Patents Act, 1970 is not only sufficient but also in conformity with the TRIPS

Agreement. The protection in the form of Data Exclusivity is a TRIPS plus provisionto which Indian does not owe any obligation.

III. Salient features of Indian Patent law

The Patent law of India has the following salient features that decide whether a patentwill be granted or not:

(a) The object: The object of patent law is to encourage scientific research, new

technology and industrial progress. The price of the grant of the monopoly is thedisclosure of the invention at the Patent Office, which, after the expiry of the fixed period

of the monopoly, passes into the public domain.

(b) Inventive step: The fundamental principle of Patent law is that a patent is granted

only for an invention which must have novelty and utility. It is essential for the validity

of a patent that it must be the inventor's own discovery as opposed to mere verificationof what was, already known before the date of the patent.

(c) Useful: The previous Act, i.e. Act of 1911, does not specify the requirement of being,

useful, in the definition of invention, but courts have always taken the view that apatentable invention, apart from being a new manufacture, must also be useful.

(d) Improvement: In order to be patentable, an improvement on something knownbefore or a combination of different matters already known, should be something more

than a mere workshop improvement, and must independently satisfy the test of invention

or an inventive step. It must produce a new result, or a new article or a better or cheaperarticle than before. The new subject matter must involve "invention" over what is old.

Mere collocation of more than one, integers or things, not involving the exercise of any

inventive faculty does not qualify for the grant of a patent.

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(e) The guiding tests: To decide whether an alleged invention involves novelty and an

inventive step, certain broad criteria can be indicated. Firstly if the "manner of

manufacture" patented, was publicly known, used or practised in the country before or atthe date of the patent, it will negative novelty or `subject matter'. Prior public knowledge

of the alleged invention can be by word of mouth or by publication through books or

other media. Secondly, the alleged discovery must not be the obvious or naturalsuggestion of what was previously known.

In short the invention must involve an inventive step and the same must be capable ofindustrial application. It must be supplemented by the concept of non-obviousness.

III. Conclusion

The Indian patents Act, 1970 is not only a complete Act but also in conformity with the

TRIPS Agreement. It, however, needs enunciations in the form of judicial precedents as

the same are lacking in case of patent law. It further must be analysed in the light of

International developments in this field. The Indian Patent law must also be analysed inthe light of both Public International law and the Private International Law as the

same may create some problems in future. Further, the use of Information andCommunication Technology (ICT) is going to be one of the inevitable requirements of a

sound Indian Patent System. In India we are managing the solely available ICT

HELPDESK2 that is analysing the needs of the contemporary International Patent regimewithin an ICT environment. Among other areas, it is also dealing with the ICT-IPRs

collaboration and requirements. In the subsequent series, I will try to pick one by one

each areas associated with Indian patent Law.

2Kindly see the details and working of ICT HELPDESK and RTI HELPDESK at

http://legalsolutionsindia.blogspot.com/.

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153388_indian Patent Law Some Reflections

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