LAWFUEL – New Delhi, Delhi, India, 04/06/2007 – Patent law has been formulated with an objective to promote and protect the inventions and methods. The object of granting a patent is to encourage and develop science, technology and industry.
Uruguay round of GATT negotiations paved the way for WTO. Therefore India was put under the contractual obligation to amend its patents act in compliance with the provisions of TRIPS. India had to meet the first set of requirements on 1-1-1995. This was to give a pipeline protection till the country starts giving product patent. It came to force on 26th March 1999 retrospective from 1-1-1995. It lays down the provisions for filing of application for product patent in the field of drugs or medicines with effect from 01.01.1995 and grant of Exclusive Marketing Rights on those products.
India amended its Patents Act again in 2002 to meet with the second set of obligations (Term of Patent etc.), which had to be effected from 1-1-2000. This amendment, which provides for 20 years term for the patent, Reversal of burden of proof etc. came into force on 20th May, 2003. The Third Amendment of the Patents Act 1970, by way of the Patents (Amendment) Ordinance 2004 came into force on 1st January, 2005 incorporating the provisions for granting product patent in all fields of Technology including chemicals, food, drugs & agrochemicals and this Ordinance is replaced by the Patents (Amendment) Act 2005 which is in force now having effect from 1-1-2005.
ESTABLISHMENT OF PATENT ADMINISTRATION IN INDIA
Patent system in India is administered under the superintendence of the Controller General of Patents, Designs, Trademarks and Geographical Indications.
The Office of the Controller General functions under the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry. There are four patent offices in India. The Head Office is located at Kolkata and other Patent Offices are located at Delhi, Mumbai and Chennai. The Controller General delegates his powers to Sr. Joint Controller, Joint Controllers, Deputy Controllers and Assistant Controllers. Examiners of patents in each office discharge their duties according to the direction of the Controllers.
A patent can be granted for an invention which may be related to any process or product. The word “Invention“ has been defined under the Patents Act 1970 as amended from time to time.
“An invention means a new product or process involving an inventive step and capable of industrial application” (S. 2(1)(j))
“new invention” is defined as 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 patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art; Where, Capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry
(S.2 (1)(ac)) Therefore, the criteria for an invention to be patentable are,
(1) An invention must be novel
(2) has an inventive step and
(3) is capable of industrial application
To be patentable, an invention should fall within the scope of patentable subject matter as defined by the patent statute. The invention must relate to a machine, article or substance produced by manufacture, or the process of manufacture of an article. A patent may also be obtained for an improvement of an article or of a process of manufacture. With regard to medicine or drug and certain classes of chemicals no patent is granted for the product itself even if new, only the process of manufacturing the substance is patentable. However, product patents would be available for drugs and food materials from 2005 as India’s obligations under the TRIPs Agreement would kick in from that point of time. If any substance falls outside the scope of patentable subject matter, it cannot be patentable.