Indian Patent Laws

Indian Patent Laws are governed primarily by the Patents Act, 1970, which was extensively amended in 2005 to align with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement under the World Trade Organization (WTO). The legislation provides a legal framework for granting patents, protecting inventions, and balancing the rights of inventors with public interest.

Objectives of Indian Patent Laws:

Indian patent laws aim to:

• Encourage innovation by granting inventors exclusive rights to their inventions.
• Foster technological advancement and knowledge dissemination.
• Protect public interest by preventing monopolistic practices.
• Ensure compliance with international intellectual property (IP) standards like TRIPS.

Definition and Scope of Patentable Inventions:

Under Indian law, an invention must meet three main criteria to be patentable:

• Novelty: The invention should be new, meaning it must not have been previously published or used in India or elsewhere.
• Inventive Step: It should involve a non-obvious advancement over existing technology.
• Industrial Applicability: The invention must be capable of industrial application, meaning it can be made or used in some industry.

However, certain subject matters are specifically excluded from being patented, such as:

• Discoveries, scientific theories, or mathematical methods.
• Aesthetic creations, literary, dramatic, musical, or artistic works.
• Methods of agriculture or horticulture.
• Business methods, algorithms, and computer programs per se.
• Medical, surgical, and diagnostic methods for treatment.

Application and Granting Process:

The patent application process in India is administered by the Indian Patent Office (IPO) and includes the following steps:

• Filing:

Patent application must be filed with complete details of the invention, including specifications, claims, and drawings. Applications can be filed for ordinary, conventional, or PCT national phase patents.

• Publication:

After 18 months, the patent application is published, making it accessible to the public. However, applicants may request early publication.

• Examination:

After publication, an applicant must request examination within 48 months from the filing date. During this stage, the patent is scrutinized for compliance with legal standards, and the examiner may raise objections.

• Response to Objections:

Applicants are given an opportunity to respond to objections and provide clarifications or amendments. This process ensures that only legitimate inventions are patented.

• Grant:

Once the examination and objection process is satisfactorily completed, the patent is granted. The term of a patent in India is 20 years from the date of filing.

Rights and Responsibilities of a Patent Holder:

Patent grants the holder the exclusive right to make, use, sell, or import the patented invention. The holder can license or assign their rights to others, allowing them to commercialize the invention. However, with these rights come certain responsibilities:

• Working Requirement:

The patentee must work the patent within India, meaning the invention should be made available to the public. Failure to do so can result in compulsory licensing or revocation.

• Renewal:

Patent must be renewed annually by paying the renewal fee. Failure to pay results in patent lapse.

• Disclosure Obligations:

Patent holder must disclose the best mode of carrying out the invention. Concealment can lead to invalidation of the patent.

Compulsory Licensing:

Compulsory licensing is a unique provision in Indian patent law, designed to prevent monopolistic abuse by patentees and ensure access to essential inventions:

• Eligibility:

Compulsory licenses can be issued if the patented invention is not available to the public at a reasonable price, if it is not being worked in India, or if it is required to address public health crises or national emergencies.

• Application for License:

Interested parties can apply for a compulsory license three years after the patent grant.

• Reasonable Remuneration:

The licensee is required to pay the patent holder a reasonable royalty, balancing public interest with the patentee’s rights.

Compulsory licensing has been instrumental in India, particularly in the pharmaceutical sector, where access to affordable medication is crucial. For example, in 2012, India granted a compulsory license for the cancer drug Nexavar, ensuring its availability at a lower cost.

Patent Infringement and Remedies:

Patent infringement occurs when an unauthorized party makes, uses, sells, or imports a patented invention without the patent holder’s consent. Remedies for infringement under Indian law are:

• Injunctions: The patent holder can seek a court order preventing further infringement.
• Damages: The infringer may be liable for compensating the patent holder for losses incurred.
• Accounts of Profits: The infringer may be required to account for and pay profits gained from the unauthorized use of the invention.

Patent Protection for Pharmaceuticals and Agrochemicals:

Indian patent law initially excluded pharmaceuticals and agrochemicals from patent protection to ensure affordable access. However, the 2005 amendment brought Indian patent law into TRIPS compliance, granting product patents for pharmaceuticals and agrochemicals, though with certain public health safeguards.

• Section 3(d):

This provision prohibits patents for new forms of known substances unless they demonstrate significant efficacy. This aims to prevent “evergreening,” where companies make minor modifications to extend patent life.

• Compulsory Licensing in Public Interest:

As mentioned, the law allows compulsory licensing to balance affordability and patent protection, especially for life-saving drugs.

Patent Cooperation Treaty (PCT) and International Patents:

India is a signatory to the Patent Cooperation Treaty (PCT), enabling Indian applicants to seek patent protection in multiple countries through a single application. Similarly, foreign inventors can apply for patents in India via PCT, facilitating global protection and reducing administrative burden.

Patent Law Amendments and Evolving Trends:

Indian patent law has evolved through amendments to address emerging challenges and global changes. The 2005 amendment was pivotal in making Indian law TRIPS-compliant and reintroducing product patents. Additionally, ongoing discussions focus on balancing innovation, access to essential medicines, and sustainable development.

Digital innovations, artificial intelligence (AI), and biotechnology have further challenged traditional patent law frameworks. The Indian Patent Office has been working to adapt examination guidelines and policies to accommodate these advances without compromising public interest.