This Article is written by Hitakshi Maggo from Fairfield Institute of Management and Technology.
HISTORY OF PATENT LAW
Government appointed Justice Rajagopala Ayyanagar to examine and review about initiating patent law in India and advise the changes required for the same in regards with the law to the government. Due to different technologies and development in some of the patent laws, Justice Avyanagar stated some points that these types of patent laws would be operated differently in industrial countries and under developed countries.
Justice Ayyanagar submitted a comprehensive report on Patent Law Revision in September 1959 which became a basis for the Patents Bill, 1965. The Bill also incorporated a few more changes with reference to patents for food, drugs and medicines and was introduced in the Lok Sabha in 1965. The Bill was referred to a Joint Committee of Parliament which after making a careful consideration of the matter, adopted a number of amendments to the Bill. The amended Bill was moved in the Lok Sabha in 1966. Unfortunately, it could not be proceeded with for want of time and eventually lapsed with the dissolution of the Lok Sabha in 1967. The Patents Bill was again introduced in the Parliament and was passed by both the Houses of the Parliament in 1970. The Act came into force on April 20, 1972.
MEANING OF PATENT
According to Section 2(1)(m), “patent” means a patent for any invention granted under this Act. It is a monopoly granted by the patent office for inventors and for a limited period of time on their invention. Invention means any thing or product or process which also includes inventive steps which are capable for industrial applications. Basically those inventive steps or inventions which include the knowledge of engineering or science studies are all protected under this Act. It is not necessary that only an invention of a product will get patented by this act even if a product is improved by inventive steps it would by an invention. But as usual if you want to get your product patented then the product should be a totally new product and mere small inventions aren’t considered as reliable for patent.
IS IT MANDATORY TO GET A PATENT?
It is not mandatory to apply for a patent for your inventions, it is optional. Inventors can opt for keeping their invention or inventive steps secret rather than applying for a patent which can hamper its secrecy. But if someone opt for not getting patented then there is a risk of disclosure of their inventions to their competitors because anyone can use reverse engineering process or communication of information by someone in possession with such inventive information can leak the same and due to not getting patented there is no such obligation to not to disclose such information so, there is risk and there is no such remedy available to that person in this case because there is no such law binding non-patented products. Like in the case of Shinning Industries v. Shri Krishna Industries, the High court of Allahabad stated that mere invention is not a property right if it is not patented, because sometimes inventors apply for patent and create a monopoly right for a period of time to exploit others and their invention to the exclusion of others.
A Patent Law is a guarantee or owner of the patent for a period as per registered patent product. A firm cannot be called an inventor but there will be no issue for them to be registered as a patentee either by a patentee assignment or jointly with a true inventor. And a corporation can not be a sole claiming inventor for the same.
WHAT ARE NOT INVENTIONS?
Section 3 outlines various situations where an invention (properly so called) can yet be not patentable. According to Section 3, followings are not inventions within the meaning of the Act,
- Any invention which is in contravention with natural laws, or frivolous.
- Sometimes people use invention as a commercial exploitation which will be in contravention with public order or morality and which can also cause harm to human, animals or plant life or to environmental conditions that are not considered as invention.
- The mere discovery of a scientific principle or the formulation of an abstract theory.
- 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.
- The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
- A method of agriculture or horticulture.
- Any process for the medicinal, surgical, curative, prophylactic [diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
- Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.
- A mathematical or business method or a computer program per se or algorithms.
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.
- A mere scheme or rule or method of performing a mental act or method of playing a game.
- A presentation of information.
- Topography of integrated circuits.
- Invention of traditional knowledge or duplication of already existing properties of traditional knowledge.
PRODUCT PATENT AND PROCESS PATENT
Product patent is known as the patent for the product made. In this type of patent a person made a patent on the product made by him for example a medicine made by Bhuvan namely covaxin, Bhuvan wants a product patent on Covaxin, now no one can make similar product. No one can make a similar type of medicine with some invention. And on the other hand process patent is when someone takes a patent for the process of inventions. In the similar example if Bhuvan gets a patent on the process of making covaxin not on the product then someone can easily make such product or medicine with making inventions in the process of making it like in place of process A+B+C (used by Bhuvan) someone can use process A+B+D+E to make similar usage medicine, that’s why we see different substitutes of medicines for example in the place of PCM one can use DOLO medicine, etc.
There is a provision of EMR (Exclusive Marketing Rights), which was introduced by amending the Patent Act of 1970 to Patent Amendment Act, 1999. In accordance with this amendment certain exclusive rights with listed conditions should be met by the inventor for getting the same. The first company to get Exclusive Marketing Rights was Novartis for their drugs under GlivecWockhardt’s a topical antibacterial drug/medicine. At that time when Novartis take a step to enforce EMR against those companies which are also in this field of manufacturing drugs with inclusion of glivec, process patent is only include under that patent law not product patent which help these companies to sold these drugs at low price which will help citizens to afford them too. Because of increasing demand for Novartis, local pharmacies faced a lot of restrictions with respect to their products which resulted in starting researching for more legal options to get a view out of this situation.
NOVARTIS AG V. UNION OF INDIA, 2013 (2013) 6 SCC 1
In 2004 Novartis Ag acquired EMR for the similar practice with its drugs and after making minor changes they applied for a fresh patent in respect to create a monopoly over that drug which will also result in exploitation at high level with humans too. The Supreme Court stated that this will be unfair for the public, it was further held by the Court that the patent will not be considerable as it is an illegal way of seeking patent for the same type of drugs.
This is a landmark case that deals with a very important concept called ever-greening. Since a patent is valid only for a period of 20 years, this practice of making a minor change in the composition of the drug and seeking a new patent for the drug is prevalent. This way the company extends its monopoly on the drug and the drug can not be made by other companies. It gives relief to those who can’t afford the lifesaving drug as these pharmaceutical companies sell such lifesaving drugs at a very high price hence unaffordable for the common man.
Exclusive Marketing Rights validity period is of 5 years. Which are rejected on the basis that the company can create a monopoly by their product and start to exploit without having rights to do the same as in the process of expanding market value and this can be a reason for getting your patent application rejected because this can be an unfair advantage for the exclusive Marketing rights.
- Jayabhtnagar, Anand and Anand, Mondaq, Patent Law in India,
- Intellectual Property Rights, VK Ahuja
- Novartis Ag v. Union of India, (2013) 6 SCC 1
- Shinning Industries v. Shri Krishna Industries AIR 1975 ALL 231