Indian patent law

Under Indian patent law, as in most patent laws, a patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent. To become patentable subject matter in India, an invention must meet the following criteria:

1. It should be novel.
2. It should have inventive step or it must be non-obvious.
3. It should be capable of industrial application.
4. It should not fall within the provisions of section 3 and 4 of the Patents Act 1970.^[1]

History

Pre 1947 Legislation

The patent law in India has its origin in the 19th century, during the British rule of the country . Even when the Indian subcontinent was under the Company rule, the first legislation relating to patents was enacted - Act VI of 1856^[2] and was modeled on the lines of British Patent Law of 1852.^[3] The objective of this legislation was to encourage inventions of new and useful manufactures and to induce inventors to disclose secret of their inventions and to achieve this the Act granted certain special privileges to inventors of new products for a period of 14 years.

Subsequent to the sepoy mutiny, the power got transferred from Company rule to the British crown via Government of India Act 1858. Fresh legislation for granting ‘exclusive privileges’ was introduced in 1859 as Act XV of 1859. This legislation contained certain modifications of the earlier legislation, namely, grant of exclusive privileges to useful inventions only and extension of priority period from 6 months to 12 months. This Act excluded importers from the definition of inventor. This Act was based on the United Kingdom Act of 1852 with certain departures which include allowing assignees to make application in India and also taking prior public use or publication in India or United Kingdom for the purpose of ascertaining novelty. Subsequently 3 laws relating to patents -The Patents & Designs Protection Act, 1872; The Protection Of Inventions Act, 1883 later consolidated as The Inventions & Designs Act, 1888; The Indian Patents & Designs Act 1911 were enacted in the British Era.^[2] Patent Administration was brought under the management of the Controller of Patents for the first time via the Indian Patents & Designs Act 1911.

Post 1947 Legislation

Justice Bakshi Tek Chand Committee

The Government of India constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek Chand, a retired Judge of Lahore High Court, in 1949 to review the patent law in India in order to ensure that the patent system is conducive to the national interest. The Committee submitted its interim report on August 4, 1949 and the final report in1950 making recommendations for prevention of misuse or abuse of patent rights in India.It also observed that the Patent Act should contain a clear indication that food and medicine and surgical and curative devices were to be made available to the public at the cheapest price commensurate with giving reasonable compensation to the patentee. Based on the committee’s recommendations, the 1911 Act was amended in 1950 by Act 32 of 1950,^[4] in relation to working of inventions, including compulsory licensing and revocation of patents. In 1952, a further amendment was made by Act 70 of 1952 to provide for compulsory license in respect of food and medicines, insecticide, germicide orfungicide, and a process for producing substance or any invention relating to surgical or curative devices. The committee’s recommendation prompted the Government to introduce a bill (Bill no. 59 of 1953) in Parliament, but the bill was not pressed and it was allowed to lapse.^[5]

Justice N. Rajagopala Ayyangar Committee

In 1957, a one-man committee under the chairmanship of Justice N. Rajagopala Ayyangar was appointed to take a fresh look at the law of patent and to completely revamp and recast it to best sub-serve the(contemporary) needs of the country .Justice N. Rajagopala Ayyangar pointed out that during the period 1930-37, the grant of patents to Indians and foreigners was roughly in the ratio of 1:9. Even after Independence,though a number of institutions for post-graduate training were setup and several national laboratories were established to encourage a rapid growth of scientific education, the proportion of Indian and the foreign patents remained substantially the same, at roughly 1:9. He further pointed out that this ratio does not take into account the economic or industrial or scientific importance of the inventions. If these factors are taken into account, Indians would appear to be lagging even further behind.Further, taking into reckoning the number of inventions for which renewal fees were paid beyond the 6th year, which would give a rough idea of the value attached to the invention by the patentee, the patents taken by Indians would appear to be of little worth as compared with patents held by foreign nationals . He examined the nature of the patent right and considered the arguments advanced as justifications/rationalizations for grant of patents. He described the patent law, in his report, as an instrument for managing the political economy of the country. He observed:“It would not be an exaggeration to say that the industrial progress of a country is considerably stimulated or retarded by its patent system according as to whether the system is suited to it or not.” (p. 9, para 16) .Observing that industrial countries and under-developed countries had different demands and requirements, Justice N. Rajagopala Ayyangar pointed out that the same patent law would operate differently in two countries at two different levels of technological and economic development, and hence the need to regulate the patent law in accordance with the need of the country^[6] Justice N. Rajagopala Ayyangar’s report specially discussed 2 issues.

Patents for chemical inventions

Having considered the matter, he reached the conclusion that the chemical and pharmaceutical industry of India would be advanced and the tempo of research in that field would be promoted if the German system of permitting only process claims were adopted.

Patents for inventions relating to food and medicine

Justice N. Rajagopala Ayyangar pointed out that barring the US, there was hardly any country that allowed unrestricted grant of patents in respect of articles of food and medicines, or as to the licensing and working of patents in this class . In none of the countries of Europe were patents granted for product claims for articles of food or medicine, and in a few (Denmark for articles of food; and Italy, under the law of 1957, for medicinal products) even claims for processes for producing them were non-patentable. He explained that the reason for this state of law is stated to be that the denial of product claims is necessary in order that important articles of daily use such as medicine or food, which are vital to the health of the community, should be made available to everyone at reasonable prices and that no monopoly should be granted in respect of such articles. It is considered that the refusal of product patents would enlarge the area of competition and thus result in the production of these articles in sufficient quantity and at the lowest possible cost to the public.

The Patents Act, 1970

Justice N. Rajagopala Ayyangar submitted a comprehensive Report on Patent Law Revision in September 1959 and the new law of patent, namely, the Patents Act, 1970, came to be enacted mainly based on the recommendations of the report, and came into force on April 20, 1972, replacing the Patents and Designs Act, 1911.^[7]

Chapter I

Sections 1 and 2 comprised Chapter I. Section 2 of Chapter I contained the definition and interpretation clauses; it defined the terms “invention” and “medicine” in clauses (j) and (l) respectively

Invention

According to Section 2(1)(j) of the act, "invention" means any new and useful-

1. art, process, method or manner of manufacture.
2. machine, apparatus or other article.
3. substance produced by manufacture.

Medicine or drug

According Section 2(1)(l) "medicine or drug" includes-

1. all medicines for internal or external use of human beings or animals,
2. all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals,
3. all substances intended to be used or in the maintenance of public health, or the prevention or control of any epidemic disease among human beings or animals
4. insecticides, germicides, fungicides, weedicides and all other substances intended to be used for the protection or preservation of plants,
5. all chemical substances which are ordinarily used as intermediates in the preparation or manufacture of any of the medicines or substances above referred to;

Chapter II

Chapter II was headed “Inventions not patentable” and had three sections on - "What are not inventions", "Inventions relating to atomic energy not patentable", "Inventions where only methods or processes of manufacture patentable". The most notable section is section 3(d) which says "the mere discovery of any new property of 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;"

Features

The Patent Act 1970, based on the recommendations of the 1959 Ayyangar Report, was a crucial initiative to facilitate a domestically-owned pharma­ceutical industry as an alternative to the very expensive imported pharmaceuticals. Coming into force in 1972, this Act was designed to offer process patents for only five years, and no product patents, on pharmaceuticals. ^[8]

List of cases

Herceptin

Swiss pharma major Roche Holding had filed for patent of Herceptin on October 11, 2000 and was granted a patent on April 6, 2007 but faced a post grant opposition. Following it, the Controllers of the Patent Office gave the company opportunity under three applications filed by it “of being heard before the final disposition of these cases”. But, the Request for Examination had been filed on 17.03.2006, i.e., beyond the prescribed period (which was due on 16.02.2006) .Putting the blame entirely on the pharmaceutical major, the Ministry has clarified that "If the requests are not filed within time they are treated as withdrawn under section 11 B(4)^[9] of the (Indian Patents) Act ".^[10]

See also

• Indian Patent Office

References