According to World intellectual property organisation (WIPO) patent is an exclusive right granted for an innovation which is a product or process that provides, in general a new way of doing something or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. It provides the patent owner the exclusive right to prevent others from commercially exploiting the patented invention. Since patents are territorial rights they are applicable within the boundaries of a country in which the patent application has been filed and granted.
Historically patent law in India can be traced back to Indian patents and design act, 1911. Other intellectual property laws which followed this act include copyrights act 1957, Patents act 1970, trademark act 1999, design Act 2000, geographical indication of goods act 1999, protection of plant varieties and farmers right Act 2001, and semiconductors and integrated layout design Act 2000. Many of the above mentioned acts were amended subsequently to align them with international norms. These laws cater to different intellectual properties like patent, copyright, trademarks, industrial design, plant varieties etc.
India amended its intellectual property legislations in 2005 to be abreast with TRIPS regulations. Patent Act 1970 (amended in 2005) has the following features-
1. Section 2 of the 1970 act defines invention as a new product or process involving an inventive step and capable of industrial application. It defines inventive step as a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
2. The act enlists the inventions which are not patentable; persons who are entitled to apply for patents; application procedure; publication and examination of applications and various other provisions pertaining to patents.
3. It states that term of patent will be 20 years and ever-greening of patents is not admissible.
4. Patentees have certain rights and it is defined in section 48 of the act. The purpose of these rights is to prevent third parties from using the product or the process with commercial intent. The rights of Co-owners of patents are also mentioned.
5. Patents can be surrendered and revoked and the provisions are stated under section 63 and section 64. Revocation of patent can be made in public interest when the central government is of the opinion that a patent or the mode in which it is exercised is mischievous to the state or generally prejudicial to the public. The patentee will be given an opportunity to be heard.
6. The controller general of patents, design and trademarks is appointed by the central government. The powers of controller is enlisted in the act.
7. Section 84 details about compulsory licenses. At anytime after the expiration of three years from the date of grant of a patent any person interested may make an application to the controller for grant of compulsory license or patent without the consent of the patentee, subject to in the following grounds
-That the reasonable requirements of the public with respect to the patented invention have not been satisfied, or
-That the patented invention is not available to the public at a reasonably affordable price, or
-That the patented invention is not worked in the territory of India.
The first compulsory license was granted in 2012 to Hyderabad based Natco pharma for the production of generic version of Bayer’s Nexavar, an anti cancer agent.
Need for a strong IP policy
The patent act of India is in line with international standards and international best practices. The amendment of 2005 completed this process of aligning the act with TRIPS. This makes India a strong candidate to fight for its intellectual property. As an ode to this development India won the Basmati rice patent case and the turmeric case. A strong domestic intellectual property policy and awareness can bring economic laurels to India. Post 2005 amendment, a comprehensive act defining procedures and methods of dispute resolution in case of opposition proceedings to grant patents and anticipation has been made available to Indians. Government has spread awareness about intellectual property and the need to register it timely. Initiatives like traditional knowledge digital library (TKDL) further strengthen India’s game in intellectual property. The most recent development in the field of IPR is the abolition of intellectual property appellate board. The high courts will be taking over the function of addressing the appeals.
New ideas in tandem with the culture influences can make India a hotspot of innovation. Fermenting new ideas is an untapped strength of India. Hence a robust and updated intellectual policy is a must to harness these assets to the fullest.