Intellectual Patent

8/10/2019 Intellectual Patent

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Submitted by:Nitesh Dalal

Nishant AgrawalOmkar Patne

Pankaj KhannaNutush Mishra

Nancy Gupta


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What is a Patent:A Patent is a form of Intellectual Property Right which isgranted and protected by the law. It is an exclusive rightgranted to a person who has invented a new and usefularticle or has invented an improvement of an existingarticle or a completely new process of developing anarticle.Patent is an exclusive right granted to the patent holder,

for a limited period, as a reward for creative work basedon his private initiative. After the expiry of patent protection, the invention becomes general property andanyone can use it.


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History of Indian Patent Law:In 1957, Government of India appointedJustice N. Rajagopala Ayyangar to examine and

review the Patent law in India who gave hisreport in September 1959 recommending theretention of Patent System despite manydrawbacks. The bill was passed by both thehouses of the Parliament and the Patents Act1970 came into force on 20th April 1972 alongwith Patent Rules 1972.


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Since its enforcement, the Act has been amended onfive instances by:

The Repealing and Amending Act, 1974 (Act 56 of1974)

The Delegated Legislation Provisions (Amendment)Act, 1985 (Act 4 of1985)

The Patents (Amendment) Act, 1999 (17 of 1999) The Patents (Amendment) Act, 2002 (38 of 2002) The Patents (Amendment) Act, 2005 (15 of 2005)


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Why are Patent laws needed:A patent law is necessary so to facilitateinvestment in research and development by

private companies for the development of thesociety and helps in boosting the economy ofthe nation.The patent system rewards the investor forinvesting his time and money in the particularfield and encourage him to continueinvestigation in the particular field.


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Patent System encourages the information to beshared rather than keeping it as an trade secret.

Patents help in development of that particularfield of invention and enhances scientificknowledge by using the published documents.Patents provide freedom of movement in the

particular field to which it relates to, especiallyif it pertains to a crowded field with manycompetitors or one which is dominated by oneimportant player.


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Which Inventions can be Patented:The invention should be novel: A novel inventionis one which is different from all previousinventions in one or more elements.The discovery should have an inventive step:Inventive step means a feature of the inventionmust be non-obvious to a person skilled in that

field.The invention should be capable of industrialapplication: The invention should be applicable insome kind of industry.


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India and the International Patent Law:The Uruguay round of GATT negotiations played animportant role in paving the way for WTO. India was putunder the contractual obligation to amend its patents act incompliance with the provisions of TRIPS.India was asked to meet the first set of requirements on 1-1-1995 and all this was done to give a pipeline protection

till the country starts giving product patent.It came into force on 26 th March, 1999 and includes all patent of drugs filed after 01-01-1995.


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India had to amend its Patents Act again in 2002 tocomply with the second set of obligations , which had to

be effected from 1-1-2000.This amendment, which provides for 20 years term for the

patent came into force on 20th May, 2003.As a result of the TRIPs Agreement and amendments in

the Indian Patent Act, India is now part of a global treatywhich encourages and protects technological innovations,not just in few but a very large number of countries.


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Patents have become a powerful tool for enhancing theResearch and Development (R&D) quality and also

business profits.The fast changing global scenario and challenges imposed

by the new patent regime has made IPR compliance, theneed of the hour.

Most developed countries are for strong IPR protectionand highlight its virtues in creating knowledge wealth,encouraging innovation, providing access to technology,stemming brain drain and improving the quality of life.


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As a result of TRIPs agreement, WTO members have toenforce product patents for agrochemicals and also for

pharmaceutical compounds.But around 50 developing countries, also including Indiadid not comply with this requirement during the Uruguayround of GATT negotiations.

The much debated and also awaited patents amendmentwas finally passed in the parliament in March 2005. Itwas this third amendment to the Indian Patents Act 1970which brought India in the line with the TRIPs agreement.


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It has been suggested that all the countries should adopt product patents instead of process patents.

Supporters of product patent argue that this regime provides with more comprehensive protection to theinventor since the product itself is protected.Supporters of process patent argue that this regime helps

in promoting competition and may also inspire innovationof new technologies that are more efficient.


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Many countries, who up till recently were following process patent systems, have been forced to change theirlaws and start pursuing product patent regimes. The patentlaw is one of the seven intellectual property laws protectedunder this agreement.Section 5 of the Agreement on TRIPs deals with Patents.Article 27 says that patents shall be available for anyinventions, whether products or processes in all fields oftechnology provided that they are new, involve aninventive step and are capable of industrial application.


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Difference between Process and

Product patent: Process Patent: This is granted for a new process ofmanufacturing an already known product or formanufacturing articles of the same product at a reduced

price.Product Patent: it is granted when a completely new

product has been invented by a person. The productinvented may either be more or less useful to an existing

product, or a new product altogether.


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Problems with Developed countriesEver since the Novartis decision there has been growingsuspicions about Indian Patent Laws giving undueadvantages to Indian companies especially in the

pharmaceutical field.Developed nations are the crucial manufacturers of newertechnologies. Developing nations are almost absolutelydependent on the developed nations for technologiesneeded for their progress and advancement.


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Drugs which heal non-communicable diseases areespecially unapproachable because of the outrageous

pricing and only 35% of the essential medications areavailable in developing nations. Intellectual property

protection can prevent such access, or pricing it atunattainable levels. Yet, by manufacturing low-price copied drugs,developing nations, like India and South Africa, have

become tangled in patent conflicts with pharmaceuticalcompanies.


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Passed by the World Trade Organization (WTO) in 1995,the Agreement on TRIPS serves as the contract documentfor patent regulations.The developing nations felt they were at a disadvantagefrom the agreement. Due to limited resources, theyencountered problems in passing medical patents whichcould improve public health.As a result, in November 2001, the WTO passed the DohaDeclaration with the goal of growing access to drugs indeveloping nations by making regulations more flexible.


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As a result, in November 2001, the WTO passed the DohaDeclaration with the goal of growing access to drugs indeveloping nations by making regulations more flexible.In this case, India issued a compulsory license for thefirst time. Compulsory licensing allows firms to use the

patent of another firm without pursuing the consent of theholder but pays the holder a set fee for the permit.Still producing low-cost copies of medicines leads toclatters between Big Pharma and national governments.


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Norvatis Vs Indian System:In 2006, there was an constant lawsuit filed by thecompany Novartis to reserve its monopoly over the cancerdrug Gleevec in India.In this lawsuit, Novartis claimed that the drug Gleevecwas now using the beta form of Imatinib which was moreefficient and hence required a new patent .

Whereas India accused the company of ever -greening,i.e. making slight changes to an already prevailing drug sothat it can re-patented even after its original patent has

been expired, Imatinib.


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High prices of pharmaceuticals hinder nations from savingmany lives.Patent laws created by the WTO through TRIPS and Dohaalong with individual policies created by the governmentsof developing nations should be revised to preventdisputes with pharmaceutical companies and allow vitalmedicine to be distributed in a clearer manner.In the long term, both governments and pharmaceuticalcompanies should invest in sustained development andmanufacture drugs which target low-income populations.


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Novartis and other big drug companies say the ruling willhurt innovation in India.India is currently on the U.S. government's Priority WatchList - countries whose practices on protecting intellectual

property US believes should be monitored closely.The primary claims are that India is violating US-based

global norms on patent rights, that it is adopting patentingcriteria not authorised by international law, and that it isdiscriminating against US companies through protectionist

policies that shield Indian generic companies.


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Article 30 of the TRIPS Agreement allows exceptions and limitationsto be imposed on IP rights by a country.As per Article 1.1 and Article 27, TRIPS preserved interpretativeflexibilities and explicit flexibilities concerning patentable subjectmatter, disclosure requirements and standards of patentability.Similarly, Article 31 allows a Government to use compulsorylicensing on any grounds. TRIPS recognises that members have theright to use/adopt measures to protect public health so long as they

are consistent with TRIPS.Compulsory Licensing: when a government allows someone elseto produce the patented product or process without the consent of the

patent owner.


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The profit-driven model of the TRIPs is not suited to thehealth needs of the developing and poor countries.Doha Declaration : In November 2001, WTO clarified thescope of TRIPs stating that TRIPs can and should beinterpreted with the goal, to promote access to medicinesfor all.

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