The Indian Patent Act, 1970 forms the bedrock of India's intellectual property law. It is landmark legislation that has taken centre stage in India's quest to build up its patent system, promoting innovation and industrial growth and aligning the nation with international standards of intellectual property protection.
Patents are critically important to the modern economy as they can motivate the inventor by giving him exclusive rights leading to increased technological progress and improvement in economic development. This article will thus attempt to give a closer look into the Indian Patent Act—including its enactments, amendments, relevant case laws, and impact in the real world
Step into the future of legal expertise! Join our Advanced Certification Program in Intellectual Property Law, created by The Legal School in collaboration with Khaitan & Co. Designed for fresh law graduates and professionals, this unique course boosts your legal career. Don’t miss this opportunity—enquire today to secure your spot!
Background and History The Indian Patent Act, 1970
Emergence of Patent Laws in India
Pre-1970 Era: Indian patent laws were guided by British colonial laws like the Indian Patents and Designs Act, 1911.
Need Post Independence: The colonial regime catered more to foreign interest; hence, it was necessary to have a home-grown patent legislation.
Implementation of the 1970 Act: Indian Patent Act, 1970 was created based on the recommendations given by the Ayyangar Committee and ensured to balance innovation with welfare. This was especially the case in sensitive areas such as drugs.
Checkout the Complete History of Patent Law In India
Key Provisions of the Indian Patent Act, 1970
The Indian Patent Act, 1970, forms the foundation for intellectual property rights in inventions in India. Below is a comprehensive outline of its key provisions:
Scope of the Act
The Indian Patent Act gives a framework for the patenting of inventions that qualify. It provides clear standards for inventions and applicants so that there is a balance between innovation and public interest.
Grant of Patents: The Act provides for granting patents to new, non-obvious, and industrially applicable inventions in all fields.
Eligibility Criteria: The patent must satisfy three primary requirements:
Novelty: It should not have been made available to the public before the patent filing.
Inventive Step: It should not be known to someone with ordinary skill in the field of the invention.
Industrial Applicability: It must be useful in industries such as technology, health, or agriculture.
Patentable Inventions
The Act explains which types of inventions are eligible for patent protection and which areas of innovation should be promoted.
Examples of Patentable Inventions
Processes: New manufacturing methods or chemical processes.
Machines: New or improved machines or mechanical devices.
Manufactured Goods: New products that address a particular need.
Non-Patentable Inventions
The Act enumerates categories of inventions that are barred from patent protection to avoid their misuse and protect public welfare.
Conventional Knowledge: Existing knowledge or traditions of a community.
Conceptual Abstractions: Scientific laws, mathematical theories, or even just discoveries.
Destructive Innovations: Innovations that could cause public health, moral, or environmental damage.
Biology of Living Organisms: Normal biological activities in plants and animals.
Application for Patent
The Indian Patent Act describes the systematic procedure of patent filing and grant.
Filing Application: An applicant must present an elaborate patent specification that consists of a description of the invention, claims, and any supporting drawings.
Publications: Applications are published in the Official Patent Journal after 18 months, making them accessible for public review.
Examination: Upon a Request for Examination (RFE), the application is examined against patentability requirements.
Grant: If all the conditions are satisfied, the patent is granted to the holder, which enjoys exclusive rights.
Term of Patent Protection: The Act has set the term of patent protection in order to strike a balance between rewarding innovation and ensuring public access.
Also, Get to Know What is Evergreening of patents
Amendments to the Indian Patent Act
The Indian Patent Act, 1970 has witnessed some important amendments in recent years, which were mostly in response to global trade obligations, emerging technological landscapes, and unique economic and developmental needs of India. Here is a synopsis of the recent amendments and their impact on the patent law system in India:
1. Patent (Amendment) Act, 1999
This amendment marked a major shift in Indian patent law, aligning it with the World Trade Organization's (WTO) TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. Key changes introduced by this amendment include:
Product Patents: India granted patents for the process, not the product, in pharmaceutical and agro-chemical sectors prior to 1999. With this amendment, product patents could now be claimed in these sectors, mainly pharmaceuticals, bringing Indian patent law at par with the international world. Therefore, it had a very significant impact on the availability and affordability of generic drugs in India.
Patentability of Chemical and Pharmaceutical Inventions: It permitted patents on chemical and pharmaceutical inventions that were otherwise barred. Thus, it opened up avenues for multinational pharmaceutical companies to file patents on new drugs in India.
Patent Term: The amendment further granted a 20-year patent term, which is aligned with the international standard.
Compulsory Licensing: The amendment included provisions for compulsory licensing that permit the government to allow the use of a patented invention without the patent holder's approval under certain conditions, particularly if it is to serve the public health requirement.
2. Patent (Amendment) Act, 2002
This amendment incorporated additional amendments that would bring the Indian Patent Act fully into TRIPS compliance. Some of the notable changes were:
Compulsory Licensing Provisions: The compulsory licensing provisions (Section 84) have been further refined to provide for the grant of a compulsory license where the patented invention is not available at a reasonably affordable price or the reasonable requirements of the public are not met.
Introduction of Provisions for Granting Voluntary Licenses: The amendment had provided for voluntary licensing under which the patent holder can license his invention to another with mutual consent.
Mail-box System for Patent Filing: The 2002 amendment brought the mail-box system, through which applicants could file patent applications for products in sectors such as pharmaceuticals and agriculture, which were previously barred under Indian law, but in conformity with the TRIPS Agreement. These applications were to be processed after January 1, 2005.
3. Patent (Amendment) Act, 2005
This amendment, one of the most crucial updates to the Indian Patent Act, puts India fully in conformity with the TRIPS Agreement by altering some critical provisions, especially in the sphere of pharmaceuticals.
Shift from Process Patents to Product Patents: The amendment introduced a shift from process patents to product patents in the pharmaceutical industry. This shift enabled multinational pharmaceutical companies to apply for patents on new drugs, significantly increasing the price of drugs in India.
Provisions to Avoid "Evergreening": The 2005 Amendment incorporated provisions that avoid evergreening - a practice in which the pharmaceutical companies make minor changes to an existing drug so that it falls under a new patent protection. The amendment had incorporated Section 3(d), which required that the invention must show enhanced efficacy for a patent, particularly for pharmaceutical inventions.
Protection of Traditional Knowledge: The amendment also went about addressing the issue of protecting traditional knowledge and biodiversity. An institution called the Traditional Knowledge Digital Library was established to prevent foreign companies from patenting Indian traditional knowledge.
Also, Checkout The Patentability Criteria in India
4. Patent (Amendment) Act, 2016
This amendment seeks to make the patenting system more streamlined and efficient in its functioning. Some of the essential provisions are:
Facilitating the Grant of Patents for Start-ups and MSME: The amendment introduced provisions that facilitated expedited patent examination for Start-ups and Micro, Small, and Medium Enterprises (MSMEs) from India. This was done to provide a boost to innovation among small-sized businesses and entrepreneurs.
Introduction of e-filing and Digitalization: The amendment expanded the scope of e-filing of patent applications and provided for the digitalization of the patent filing process, making it more user-friendly and efficient. This is in line with India's push toward Digital India and has helped improve the speed of patent applications and granted patents.
Increased Fines for Patent Infringement: The Act introduced more stringent penalties for patent infringement, with increased fines and imprisonment for patent rights violation.
5. Patent (Amendment) Act, 2021
The 2021 Amendment was aimed at modernizing the Indian patent system and adapting it to new technological trends, particularly in the digital and biotechnology sectors. Key provisions include:
Digitalization of Patent Filing Process: The amendment was directed to further improve the digital infrastructure and make the filing and processing process of patent applications easier. It brought the online examination process for patent applications. It reduced delays in patent grants, increased transparency, and made the processes easier.
Public Health Provisions relating to Access to Medications: The COVID-19 Pandemic highlighted the need to rapidly produce patents related to public health inventions that might include vaccines, treatments, or any medical devices. Compulsory licensing provisions are relaxed even more in case of emergencies dealing with public health because of the Amendment.
Impacts of Recent Amendments
The amendments in the recent past have greatly transformed the Indian patent scenario:
Supporting Innovation: Being on par with international standards, these amendments have brought India as a preferred destination for foreign investment and innovation in pharmaceuticals, biotechnology, and technology sectors.
Public Health Considerations: The existence of provisions such as compulsory licensing and restrictions on incremental innovations of pharmaceuticals under patentability ensures that public health interests are not allowed to be overlooked by the monopoly of patents.
Streamlined Processes: With the implementation of electronic filing, expedited processes for start-ups, and digital records, the amendment has significantly improved the efficiency of patent application processing.
Challenges in Access to Medicines: Despite these positive changes, some critics argue that the shift to product patents in pharmaceuticals has led to higher prices for life-saving medicines, and that more measures should be taken to balance patent protection with access to affordable healthcare.
Summing Up,
The recent amendments to the Indian Patent Act have played a crucial role in modernizing India's intellectual property framework, aligning it with international standards, and supporting innovation while safeguarding public interests. These changes have had a profound impact on industries like pharmaceuticals, technology, and agriculture. However, the balance between patent holders' interests and public health continues to be a challenge and calls for more adjustments and oversight as India becomes more integrated into the global patent system.
FAQs on the Patent Act 1970
Q1. For how long does patent protection last in India?
Patent protection in India is for a period of 20 years from the date of filing of the patent application. This applies to all types of patents, such as product and process patents, provided the annual renewal fees are paid to maintain the patent's validity. The 20-year term is counted from the priority date in case of international applications filed under the Patent Cooperation Treaty (PCT).
Q2. Is software patentable in India?
Software can be patented in India, but it must satisfy the criteria under the Indian Patent Act, 1970. Inventions that are purely based on software, or "computer programs per se," are not patentable according to Section 3(k) of the Act. Yet, software inventions that involve a technical advancement or have industrial applicability other than a mere algorithm can be granted patent protection.
Q3. What is compulsory licensing under the Indian Patent Act?
Compulsory licensing refers to the provision of the Indian Patent Act, 1970, which allows the government to authorize a third party to produce, use, or sell a patented invention without the consent of the patent holder. The said mechanism is usually resorted to under Section 84 for public welfare purposes.
Q4. What are the steps to file a patent in India?
Draft a detailed specification and submit the application to the Indian Patent Office (IPO) with necessary documents and fees. The application is published after 18 months. File a Request for Examination (RFE). After that the examiner reviews the application and if objections arise, the applicant must respond. If all criteria are met, the patent is granted and published.
Q5. How to patent a biological invention in India?
Yes, biological inventions are patentable in India under the Indian Patent Act, 1970, if they fulfill the criteria of novelty, inventive step, and industrial applicability. Examples of patentable biological inventions include , biotech processes, and innovative agricultural methods.
