The Patents Act of 1970 in India

Food, chemicals, and medicines are subject to a new product patent regime introduced by the Patents (Amendment) Bill of 2005.

A forced licence may be granted by the central government at any point following the patent's award under the Indian Patent Act of 1970 under the following circumstances: national emergency; extreme urgency; or public non-commercial usage.

The Indian Patent Act of 1970 is divided into 162 sections and 23 chapters.

A patentee is the individual to whom a patent is awarded. A legal stake in the patent belongs to the patentee. He owns the patent. The patent holder has the same rights to use his property as any other moveable property owner.

Preventing other parties from violating a product is the main goal of the Indian Patent Act.

A product patent protects the final product itself, regardless of how it's made, while a process patent protects the method or process of making a product. The 1970 Act initially only allowed process patents for certain sectors like food and pharmaceuticals, but this was later amended to include product patents as well.

Compulsory licensing is a provision in the Patents Act that allows the government to grant a license to a third party to use a patented invention without the patent holder's consent, under specific circumstances. This is typically done to address public health concerns or when the patent is not being worked in India.

The Patents Act of 1970 allows for international patent applications through the Patent Cooperation Treaty (PCT). Applicants can file a single PCT application and then enter the national phase in India within 31 months from the priority date. The Act also recognizes priority claims based on applications filed in other countries.

A patent of addition is a type of patent granted for an improvement or modification of an invention for which the applicant already holds a patent (called the main patent). It allows inventors to protect incremental innovations without filing a completely new patent application.

India follows a "first to file" system, meaning that if two people independently develop the same invention, the person who files the patent application first will be granted the patent. This system encourages prompt filing of patent applications and provides clarity on priority rights.

The Patents Act of 1970, as amended, protects traditional knowledge by considering it as prior art. This means that inventions based on traditional knowledge may not be considered novel and thus may not be patentable. The Act also requires applicants to disclose the source and geographical origin of biological material used in inventions.

Pre-grant opposition is a provision in the Patents Act that allows any person to oppose a patent application before it is granted. This can be done on various grounds, such as lack of novelty or inventive step. It serves as a mechanism to ensure that only deserving inventions receive patent protection.

The Patents Act allows for the patenting of microorganisms, provided they meet the general criteria of novelty, inventive step, and industrial applicability. However, the Act excludes from patentability the mere discovery of any living thing occurring in nature.

A Markush claim is a way of claiming a group of chemical compounds in a single claim. The Indian Patent Office allows Markush claims but scrutinizes them carefully to ensure they don't cover an unreasonably large number of compounds or include speculative compounds not actually prepared or tested.

While the term "patent troll" isn't used in the Act, it addresses the issue indirectly through provisions like compulsory licensing and working requirements. These provisions discourage entities from holding patents solely for litigation purposes without actually using or commercializing the invention.

Under the Patents Act of 1970, patent protection in India lasts for 20 years from the date of filing the patent application. After this period, the invention enters the public domain and can be used by anyone without the inventor's permission.

The Patents Act allows the government to use patented inventions for its own purposes, including during national emergencies. The government must notify the patent holder and pay adequate compensation. This provision ensures that patent rights don't hinder critical public interests.

"Working of patents" refers to the requirement that patented inventions should be worked (i.e., manufactured or used) in India to the fullest extent reasonably practicable. Patent holders must submit periodic statements about the working of their patents, failing which may lead to compulsory licensing.

The Patents Act provides for civil remedies against patent infringement, including injunctions and damages. Patent infringement cases are typically heard by specialized Intellectual Property Appellate Boards or High Courts. The Act also allows for counter-claims of patent invalidity in infringement suits.

The examiner is a technical expert at the Patent Office who reviews patent applications to determine if they meet the criteria for patentability. They conduct prior art searches, assess novelty and inventive step, and may raise objections or seek clarifications from the applicant before recommending whether to grant or refuse the patent.

India is a signatory to the Paris Convention, which is reflected in the Patents Act. This convention provides for the right of priority, allowing applicants to file patent applications in member countries within 12 months of their first filing, while maintaining the original filing date's benefits.

The IPAB was a specialized tribunal that heard appeals against decisions of the Controller of Patents. It had the power to review patent grants, revocations, and other related matters. However, in 2021, the IPAB was abolished, and its functions were transferred to High Courts and Commercial Courts.

Patent classification helps organize patent documents based on the technical features of the inventions. India follows the International Patent Classification (IPC) system, which facilitates prior art searches and examination. The classification is assigned by the Patent Office and helps in efficient patent searching and examination.

The primary purpose of the Patents Act of 1970 is to protect and promote innovation in India by granting exclusive rights to inventors for their inventions. It provides a legal framework for patent protection, encouraging technological advancement and economic growth while balancing public interest.

The Controller General of Patents, Designs and Trademarks is the head of the Indian Patent Office. They oversee the administration of the Patents Act, including examining patent applications, granting patents, and maintaining the patent register. The Controller also has quasi-judicial powers to hear and decide certain disputes.

The 2005 amendment was a significant change that introduced product patents for all fields of technology, including pharmaceuticals and agrochemicals. This brought India's patent law in compliance with TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement and marked a shift from the previous process patent regime.

Unlike some countries, the Indian Patents Act does not provide for patent term extensions. The standard 20-year term applies regardless of delays in the patent office or regulatory approval processes. This policy aims to balance innovation incentives with public access to inventions.

Patent pooling is an agreement between two or more patent owners to license their patents to each other or third parties. While not explicitly addressed in the Patents Act, patent pools are generally allowed in India if they don't violate competition laws. They can promote innovation by facilitating access to complementary technologies.

A patent specification is a detailed technical description of the invention, including how it works and how to make or use it. It's crucial because it serves as the legal document defining the scope of patent protection and must be sufficiently clear for a person skilled in the art to understand and reproduce the invention.

A provisional specification is a preliminary patent application that allows an inventor to establish an early filing date. It doesn't need to include all details of the invention but must describe its nature. The inventor then has 12 months to file a complete specification, which fully describes the invention.

A divisional application is filed when the original patent application contains more than one invention. It allows the applicant to split the original application into two or more applications, each covering a distinct invention. This ensures that each invention is separately examined and potentially granted a patent.

The Bolar provision, included in Section 107A of the Patents Act, allows generic drug manufacturers to conduct research and development on patented drugs before the patent expires. This enables them to prepare for market entry immediately after patent expiration, promoting quicker access to affordable medicines.

The Indian Patents Act recognizes prior user rights under Section 11A. If a person was publicly using an invention or making serious preparations for such use before the priority date of a relevant patent application, they can continue to use the invention even if a patent is later granted to someone else.

The Patents Act of 1970 defines an "invention" as a new product or process involving an inventive step and capable of industrial application. This definition emphasizes three key elements: novelty, non-obviousness, and industrial applicability.

The three main criteria for patentability under the Indian Patents Act are: 1) Novelty (the invention must be new), 2) Inventive step (it must not be obvious to a person skilled in the art), and 3) Industrial applicability (it must be capable of being made or used in an industry).

The Patents Act of 1970 does not allow patents for software per se. However, if the software is part of an invention with a technical effect or industrial application, it may be patentable. This is often referred to as "computer-related inventions" and is subject to specific guidelines issued by the Indian Patent Office.

The Patents Act defines "inventive step" as a feature of an invention that involves technical advance compared to existing knowledge, or has economic significance, or both, and makes the invention not obvious to a person skilled in the art. This criterion helps ensure that patents are granted only for genuine innovations.

The Patents Act of 1970 addresses evergreening through Section 3(d), which prevents the patenting of new forms of known substances unless they demonstrate significantly enhanced efficacy. This provision aims to prevent pharmaceutical companies from extending their monopoly by making minor modifications to existing drugs.

The Patents Act allows for parallel imports through the principle of international exhaustion of patent rights. This means that once a patented product is sold anywhere in the world by the patent holder or with their consent, the patent rights are exhausted, allowing for import and resale of genuine products without the patent holder's permission.

Selection patents cover a subset of compounds from a larger, previously disclosed group. Under Indian patent law, selection patents are allowed but face strict scrutiny. The selected compounds must demonstrate unexpected or superior properties compared to the larger group to be considered inventive and patentable.

India is a signatory to the Budapest Treaty, which is reflected in the Patents Act. This treaty allows the deposit of microorganisms at an international depository authority for patent procedures, simplifying the process of disclosing inventions involving microorganisms in patent applications.

The Patents Act explicitly excludes business methods from patentability under Section 3(k). However, if a business method is implemented through a technical means that solves a technical problem, it might be considered a computer-related invention and potentially patentable.

The Gillette defense, while not explicitly mentioned in the Patents Act, is recognized in Indian patent jurisprudence. It allows an alleged infringer to argue that their actions were based on prior art that existed before the patent's priority date, thus challenging the patent's validity while defending against infringement claims.

While not explicitly defined in the Act, patent misuse is addressed through various provisions. The Competition Act of 2002 also plays a role in preventing anti-competitive practices related to patents. Courts can refuse to enforce patents if they're being used in a manner contrary to public policy or competition law.

Patent agents are professionals registered under the Patents Act who are authorized to represent applicants before the Patent Office. They play a crucial role in drafting patent specifications, responding to office actions, and managing the patent application process. The Act sets out qualifications and conduct rules for patent agents.

The Patents Act prohibits double patenting, which is the granting of multiple patents for the same invention. This is enforced through provisions like Section 13, which allows the examiner to object to an application if the invention has already been claimed in another application by the same applicant.

A Jepson claim is a claim format that distinguishes between old and new elements of an invention. While not specifically mentioned in the Patents Act, Jepson claims are generally acceptable in India. However, they're less common than in some other jurisdictions, as they can potentially limit the scope of protection.

The Patents Act provides for an experimental use exception under Section 47(3). This allows the use of a patented invention for the purpose of experiment or research, including instructing students. This exception promotes scientific progress by allowing researchers to study and build upon patented inventions.

Unlike some countries, the Indian Patents Act does not provide for patent term adjustment to compensate for delays in patent examination or grant. The standard 20-year term applies regardless of the time taken for patent prosecution, which is seen as a pro-public health measure, especially in the pharmaceutical sector.

A Markush-type claim is a way of claiming a class of chemical compounds. The Indian Patent Office allows Markush claims but scrutinizes them carefully. Guidelines require that the compounds within the Markush group should have a common property or activity, and the core structure should be clearly defined.

While not explicitly mentioned in the Act, the principle of file wrapper estoppel is recognized in Indian patent jurisprudence. It prevents patent holders from asserting a broader scope of protection in infringement proceedings than what they claimed during patent prosecution, based on the prosecution history.

Reach-through claims, which attempt to claim rights to future inventions based on a disclosed invention, are generally not allowed under Indian patent law. The Patents Act requires that claims be clear, succinct, and fully supported by the description, which typically precludes overly broad reach-through claims.

A Beauregard claim is a way of claiming a computer program by referring to a physical medium storing the program. While software per se is not patentable in India, Beauregard-style claims might be allowable if they are part of a larger computer-related invention that demonstrates a technical effect beyond the program itself.

The doctrine of patent exhaustion, also known as the first sale doctrine, is recognized in Indian patent law. Once a patented product is sold by the patent holder or with their consent, the patent rights are exhausted, allowing the buyer to use, sell, or dispose of that specific product without further permission from the patent holder.