A patent is a legal right granted to the inventor for a novel invention that provides the inventor with exclusive rights to use, make, sell, or license the invention for a specific period, usually 20 years. The patent term in India is 20 years from the date of filing the application, after which the invention enters the public domain, allowing others to use it freely.
Patent law encourages innovation and research by ensuring that the inventors can reap an economic reward from their inventions. It encourages R&D investment as inventors are granted a time for exclusivity to recover research and development expenses and to enjoy returns on their inventions. Patent protection guarantees the rights of the inventor in case their idea is used or reproduced without permission. Therefore, a competitive environment prevails in which innovation is boosted.
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The Patent Act, 1970 and Its Amendments
Overview of Patent Act , 1970
The Patents Act, 1970 is the main piece of legislation in India with regard to patents. It focuses on promoting technological innovation by providing legal protection to an inventor while also ensuring the public interest.
Objectives of the Act:
Encourage Inventions: By providing inventors with exclusive rights, the Act promotes the introduction of new technologies.
Protect Inventors: The Act grants legal protection to the intellectual property rights of the inventor.
Balance Public Interest: Ensures that patents do not restrict access to essential goods or hinder public welfare, especially in sectors like pharmaceuticals.
Also, Checkout What is Evergreening of Patents
Key Amendments to the Patent Act
The Patent Act 1970 has seen major amendments throughout the years. Following are the highlights of the major amendments.
2005 Amendment (TRIPS Compliance)
Introduction of Product Patents for Pharmaceuticals: Prior to the amendment, India only granted process patents for pharmaceutical products. The 2005 amendment brought India into compliance with TRIPS by introducing product patents for pharmaceuticals, allowing multinational companies to patent new drugs, not just the methods of making them.
Extension of Patent Term for Pharmaceuticals (from 14 to 20 years): The pharmaceutical product patents were extended for a term of 20 years to make India an equal player in the global platform of patent norms. This automatically ensured that pharmaceutical companies' patented products had longer time frames for exclusivity that stimulated innovation.
Also, Check out What is Patent Novelty & How to Determine Novelty?
2016 Amendment
Procedural Reform Simplification: The 2016 amendment brought in a series of procedural reforms to simplify the process and make it time-bound.
Fast-Track Examination: Implementation of accelerated examination procedures for applications relating to green technologies and startup inventions.
Filing Fee Reduction: Reduced filing fees for small entities and start-ups in order to enhance innovation, especially in nascent sectors.
Electronic Filing: Facilitate the use of online patent filing systems so as to improve efficiency and eliminate the delay that accompanies traditional paper-based processing.
Establish New Provisions to Enhance Protection of IP Rights: Improved patent enforcement provisions to offer better protection for the patent holder against infringement.
Patent Misuse and Evergreening: The Act brought in stricter rules on practices such as evergreening, where patent holders make minor changes to an existing product to extend the patent term unjustifiably.
Proposed Amendments & Trends
IP Protection for Biotechnology and Software Patents: Stronger IP protection has been the trend in biotechnology and software patents with the growth of these industries. The patent office in India is, however, still cautious regarding granting patents to software and business methods as there is still an on-going concern about patentability of abstract ideas and algorithms.
Discussions About Data Exclusivity: There is ongoing debate over data exclusivity—granting pharmaceutical companies exclusive rights to clinical trial data for a period of time—especially in light of India’s strong generic pharmaceutical industry. Advocates argue that it could improve innovation, while critics believe it may undermine access to affordable medicines.
Compulsory Licensing: Although compulsory licensing is one instrument used by the TRIPS Agreement to ensure access for such essential medicines, controversy lingers around it. Compulsory licensing has, nevertheless been used by India carefully, but effectively, when and where it has really counted, as in being an answer to the drug 'Nexavar' to make vital medicines cost lesser.
What Is Patentable in India?
The Patent Act 1970 provides a comprehensive list of inventions that cannot be patented. Following are a few of the examples patentable and non-invention in India.
Patentable Inventions of India
Novelty, Inventiveness, and Industrial Application Ability: To be a patentable invention in India three elements must be satisfied upon:
Novelty: This invention should be new, and not previously disclosed or known in any prior art.
Inventiveness (Non-Obviousness): Invention should involve an inventive step, which means not obvious to a person who has ordinary skill in the subject area.
Industrial Applicability: The invention should be applied in some kind of industry or commerce.
Examples of Patentable Inventions:
Medicines: New drugs, formulations, and medical devices.
Biotechnology: Genetic engineering, biotech products, and recombinant DNA technologies.
Machinery and Electronics: Mechanical inventions, electrical circuits, robotics, and other industrial processes.
Software Algorithms (Under Specific Circumstances): While software per se is not patentable, software inventions that involve a technical solution to a problem or are part of a technical process may be patentable.
Non-Patentable Inventions
Abstract Ideas: Mathematical formulas, theories, and pure scientific discoveries are not patentable.
Methods of Agriculture or Business: Business methods and methods of agriculture, such as genetic resources, are excluded from patentability under Section 3 of the Patent Act.
Know Inventions Not Patentable Under Section 3 of the Indian Patent Act
Examples of Non-Patentable Inventions:
Mathematical Formulas: Pure algorithms and abstract mathematical models.
Business Methods: Accounting techniques, e-commerce models, or management systems unless they involve a technical innovation.
Methods of Treatment of the Human Body: Medical treatments and surgical procedures, which are generally excluded from patentability to preserve public health.
In Summary,
The Patent Law in India ensures that the patent application in India is done in the following multi-staged approach and procedure so that only innovations, inventions, and useful novel things are granted with the patents. From patent applications- provisional, complete or through PCT, followed by detailed examination to final grants of patents, every single step involves legal compliance requirements. The opposition process is aimed at making things transparent and holding accountable, so that patents granted must be valid and enforceable. The knowledge about this process is important for inventors, companies, and legal professionals about securing patent rights and protecting intellectual property in India.
Frequently Asked Questions (FAQs) on Patent Law in India
Q1. What is the term of a patent in India?
In India, the patent term is 20 years from the date of filing of the patent application. The term is non-renewable. That means once the 20-year term gets over, the patent falls into the public domain and may be used freely by any one. However, for maintaining the patent in force during the term, annuity fees or annual renewal fees are to be paid.
Q2. Can a patent be renewed in India?
A patent can not be renewed after its 20-year term; however, the patentee has to pay annuity fees (renewal fees) annually for maintaining its validity for the entire duration of the patent. When these renewal fees are not paid, it may lead to the loss of a patent even before the expiration of 20 years. These renewal fees keep increasing with the patent's age, and failure to pay these may make the patent invalid.
Q3. What is the average salary of a patent lawyer in India?
The average salary of a patent lawyer in India can vary widely depending on factors such as experience, location, and the type of employer. On average, a patent lawyer in India earns between ₹6 lakh to ₹12 lakh per year. For those with 3-5 years of experience, salaries tend to range from ₹8 lakh to ₹15 lakh annually. Experienced patent lawyers with 10+ years of experience, especially those working in top law firms or multinational corporations, can earn upwards of ₹20 lakh per year, or more in some cases.
Q4. What is a product patent, and how does that differ from a process patent?
A product patent and a process patent differ according to the subject matter they protect under the patent. A product patent provides protection for a new product, such as a new chemical compound, machine, pharmaceutical composition, or material. A process patent protects the method or process by which a product is made. This is important in industries like pharmaceuticals, chemicals, and manufacturing where the process of making a product is novel and valuable.
