PATENTS

• The Patents Act, 1970, which is currently the law relating to patents in India, was promulgated to encourage scientific research new technology and industrial progress.


This enactment is based on the U.K. Patents Act, 1949 in many respects, but also differs from it in relation to drugs, medicines, product patents and licensing of patents.
 
• The following would not qualify as patents
  
  
• an invention which is frivolous or which claims anything obvious or contrary to the well established natural law. An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health
 
• a discovery, scientific theory or mathematical method  
• a mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant
 
• a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance  
• a mere arrangement or re-arrangement or duplication of a known device each functioning independently of one another in its own way  
• a method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacturer  
• a method of agriculture or horticulture  
• a method or process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products  
• an invention relating to atomic energy falling under the Atomic Energy Act, 1962  
• process patent in respect of food, medicine or drug, and not product patent thereof. However, in respect of substance itself intended for use or capable of being used as medicine, or drug, except chemical substances which are ordinarily used as intermediate, patent can be granted in the manner provided in the patent law  
• in respect of substances produced by chemical process including alloys, optical glass, semi conductors and inter-metallic compounds, patents are granted only for the process of manufacture but not for the substance thereof

• A patent may be granted for a new and useful product or process.

 
• A process can be patented if the process results in production of a new article or a more useful or cheaper article than what is produced by an old method.In some cases, it has been held that a process may itself be patentable even if there is no production of a new or better article. Such processes can be found in the drug industry where a new process of a manufacture of an already known drug is patentable.

• The 'true and first inventor' of the invention or his assignee or the legal representative of such person may apply for an ordinary patent. A company or a firm cannot be termed as a 'true and first inventor'. Also the 'true and first inventor' does not include either the first importer of an invention into India or a person to whom an invention is first communicated from outside India.The Government may apply for a patent.
   
• If an employee makes an invention during his employment, he would be entitled to make an application for a patent.

 
• If an invention is made by an employee specifically employed in research and development, it is presumed that the invention belongs to the employer.

 
• The person applying for a patent may or may not be an Indian citizen.

Right to use and exercise the patent

The patentee has the exclusive right to make use, exercise, sell or distribute the patented article or substance in India or to use or exercise the method or process if the patent is for a process. However, this right is exercisable during the term of the patent only.

Right to transfer and surrender

A patentee has power to assign, grant licence (exclusive or limited) or otherwise deal with the patent for any consideration.

Right to surrender the patent

Rights before sealing-during the period from the date of advertisement of the acceptance of a complete specification and the date of the sealing of patent, the applicant can exercise all the privileges and rights of a patentee except the filing of a suit for infringement.

Compulsory Licenses

The Patents Law stipulates that at any time after the expiration of 3 years from the date of sealing of the patent, any person interested may make an application to the controller alleging 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 reasonable price and seek the grant of a compulsory licence to work the patented invention.

Revocation of Patents

A patent can be revoked by the High Court, inter alia, in the following circumstances:

• The patent was granted on the application of a person not entitled to apply therefor
• The patent was obtained wrongfully in contravention of the rights of any person
• The invention is not new
• The invention is obvious or does not involve any inventive step
• The invention is not useful
• The patent was obtained on a false suggestion or representation

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