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Patent

 Patent


Patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the same. An invention is a new product or process having an inventive step (technological advancement or of high economic significance) and is capable of industrial application. 

A patent right is territorial in nature and it is valid for a period of 20 years.

It is not mandatory for one to register his patent but he will be devoid of any protection for the same. If one does not patent his work, other enterprises or individual may be able to replicate that invention at a smaller price. 

Case: Shining Industries v. Shri Krishna Industries, 1975, in this it was mentioned that invention is not a property right unless it is patented. 


History:

  • Patent is not a new law. Earlier Act VI of 1856 was there which aimed to encourage new inventions by protecting them. Certain exclusive privileges were granted to these inventors for a period of 14 years. 

  • Act XV of 1859 provided certain exclusive privileges for making, using and selling inventions. There was a possibility of authorising other people to carry out these acts. The concept of priority date was also there i.e. protection will be given from the date of filing of particular specification. 

  •  Patents and Design Protection Act, 1872 

  • Protection of Inventions Act. 1883

  • Inventions and Designs Act, 1888

  • In Indian Patents and Designs Act of 1911 there was a right to claim priority from certain countries was there. There was also a provision of submitting provisional specification before the complete specification. The term of protection was raised from 14 to 16 years.

  • In 1949 a committee headed by Justice Dr. Bakshi Tek Chand was responsible for finding out whether patent system is conducive to national interest. 

  • Based on recommendations, in 1950, the 1911 act was amended and provisions with respect to compulsory licensing, working of invention, revocation proceedings etc. were added. 

  • In 1957, Government of India appointed Justice Rajagopala Ayyangar Committee to review patent law. It found out that:

  • There is a same patent law which operates differently in industrial vis a vis underdeveloped countries because of different technological and economic development. 

  • Patent law has failed to stimulate inventions in India. 

  • In 1967, a joint parliamentary committee was constituted to give recommendation and acting upon those recommendations, Indian Patent Act of 1970 was passed, which came to force in 1972. Indian Patent Act was separated from Indian Patents and Designs Act.

  • Then WTO and TRIPS came up and India got transition time till 2005 and regime of product patent was introduced. 

  • The amendment of 1999 was applied in a retrospective manner from Jan, 1995. It allowed for filing of applications for product patents with respect to drugs, pharmaceuticals, agrochemicals but patents will not be granted immediately. All such patent applications received after 1995 till 1999, were called mailbox applications and were to be examined only after Dec. 31, 2004. But after the amendment, all such filings were given EMR (Chapter IVA).

  • In 2002 amendment, the term of protection was raised from 16 to 20 years, sec. 3 was amended, a requirement for maintaining electronic records with respect to patent regime was there. 

  • In 2005 amendment, Section 3(d) was added which states that discovery of a new form of a known substance is not patentable. The provision pertaining to process patent was removed. Chapter IVA  which talked about EMR was removed. 

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