The Patents Act 1970 had a very limited scope of protection wherein the essential elements of invention were new, useful and manner of manufacture. The Act defines 'capable of industrial application' in relation to an invention as capable of being made or used in an industry.
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.
Effects of Patent Amendment Act 2005
1. Due to the new patent regime, increased prices of products was considered to be a major hindrance during the time. However, the government has taken proactive measures to ensure low prices for essential drugs, and has used compulsory licensing as a tool to keep exorbitant prices under check.
2. The amendment intended to make Indian drug and pharmaceutical industries competitive at par with multinational companies.
3. Despite initial reservations, Indian pharmaceutical companies manufacturing generic drugs have flourished in the last decade.
4. Also, MNCs have opened Research and Development Centres in India.
The present Indian position in respect of patent law is governed by the provisions of the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 (hereinafter referred to as the Act) and Patents Acts Rules, 2006 (hereinafter referred to as the Rules)
The Head Patent Office is located at Kolkata and its branch offices are located at Delhi, Mumbai and Chennai. Patent system in India is administered by the Controller General of Patents, Designs, Trademarks and Geographical Indications. Each office has its own territorial jurisdiction for receiving patent applications and is empowered to deal with all sections of Patent Act.
The jurisdiction for filing the patent application depends upon:
Indian applicant(s): determined according to place of residence, place of business of the applicant or where the invention actually originated.
Foreign applicant(s): determined by the address for service in India
Pharmaceutical & Biotech Patents
Pharmaceutical and Biotech patents are registered in India after undergoing a stringent examination process.
In Section 3, which specifies inventions that are not patentable, under clause (d) where new use of the existing substance, process, the machine results in a new product or at best one new outcome, can be patented.
Also, the provisions of the patent law allow patenting of products in chemicals, biotechnology, food processing, drugs and pharmaceuticals, not just the process.
Rights granted by a Patent
If the patent is for a process, then the patentee has the right to prevent others from using the process, using the product directly obtained by the process, offering for sale, selling or importing the product in India directly obtained by the process.
If the grant of the patent is for a product, then the patentee has a right to prevent others from making, using, offering for sale, selling or importing the patented product in India.
Term of Patent
The term of every patent in India is 20 years from the date of filing the patent application, irrespective of whether it is filed with provisional or complete specification.
However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of 20 years begins from the international filing date.
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