Patents are a set of exclusive rights available to the owner or his beneficiary on the invention. They are governed by The Patents Act, 1970, Patents Rules, 1972. These rights include the right to use, sell, design, etc.
Features when a patent is granted:
• When the innovation is not a natural object or process;
• When the innovation new or it is not already known;
• When it is useful but not only for commercial purpose;
• When it is not obvious i.e. when there is some idea behind it.[i]
When a patent is granted, it is valid for 20 years. Paris Convention is one of the patent laws prevailing in India. India is also a part of the Trips System (Trade related Intellectual Property Rights).
PATENT LAW AND INNOVATION
Innovation would include progress in product, process or service due to certain invention or new ways to conduct business. These innovations are the new solutions to the problems. Innovation is crucial for development of technology and Patent law is used to protect those innovations so that it cannot be exploited.
The life cycle of technologies can be divided into stages – from invention, through research, development and dissemination (RD&D) and market development, to commercial diffusion. Different processes occur at each stage of the life cycle, providing various opportunities to employ instruments that promote innovation.
IMPORTANCE OF PATENTS
a) Having a directed patent strategy can reduce company costs and increase value.
A patent allows its owner to rightfully restrict the use of patented technology, also these rights can be sold by not restricting the use of the owner. This helps to cover development costs and obtain a return of investment in the development of the patented technology. This helps to create venture capitals and could lead to the development of technology.
b) Patents provide increased overall corporate value.
The valuation of corporation is based on the intellectual assets of the company, such as, patents. Today, the capital assets of Fortune 500 companies account for only 15% of the company’s value, whereas intellectual assets account for 85% of the company’s value.
c) To identify and realize the full potential
Patents help to understand the full potential of the investments, this helps the company to develop strategies for using and safeguarding their intellectual property. Part of this strategy includes the development of a patent program by which new technology is identified, assessed, and included in patent applications.[ii]
d) A patent is important because it can help safeguard your invention.
It protects your invention i.e. any product, design or process that has some clear-cut specifications bestowed to its practicality, originality, utility and suitability. A patent helps to protect it from unauthorized use or unauthorized intervention. Because once a patent is issued, no one can exploit your product.
e) Encourage Innovations
As explained earlier, how innovation and patent laws are connected and how patent law motivates innovations, this act as an advantage to the other to create more innovations to create healthy completion.[iii]
PURPOSE OF PATENT LAW
Man is the only creator on this earth which is endowed with creative and inventive mind. Man’s power of imagination and creativity has led to the invention of new things. The major purpose of the patent system is to encourage this creativity and innovation by granting inventors a monopoly for their inventions for a certain time period. It aims at rewarding the inventor and for protection of public welfare. The patent system also balances public and private interest. Public will get the product and creators will get their royalty and monopoly rights for certain limited period.
Society benefits in the long term when patent protection encourages creation and invention. When the period of protection expires, such creations and inventions go to the public domain and becomes public property.
If there were no patents, then there would be massive theft of inventions, intellectuality, knowledge, skills and even efforts. This theft would make the society regressive instead of progressive. So, the purpose of the patent law is to stop intellectual property theft and encourage the progressive and innovative human attitude along with economic gains.
PATENT LAW IN INTERNATIONAL ARENA
World Intellectual Property Organization (WIPO) facilitates Patent Co-operation Treaty (PCT), Patent Law Treaty (PLT) and The International Patent System to encourage, promote and protect innovations as well as patents. Paris Convention, Berne Convention, Budapest Treaty among others also protect patents in the international arena.
Article 27 and Article 29 of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out the following five conditions for patentability:
1) Subject matter i.e. subject matter needs to be patentable.[iv] (Scientific theories or mathematical methods aren’t patentable)
2) Novelty[v]
3) Industrial Applicability[vi]
4) Inventive step/Non obviousness[vii]
5) Disclosure i.e. invention should be sufficiently disclosed in the application[viii]
Article 28 gives exclusive rights to the owner to prevent third parties from making, using, offering for sale, selling, or importing the product or the process. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.[ix]
PATENT LAW IN INDIA
The history of Patent law in India starts from 1911 when the Indian Patents and Designs Act, 1911 was enacted. The present Patents Act, 1970 has been amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro-organisms.[x] The provisions relating to pre-grant and post-grant opposition has also been introduced. The court in the case of Novartis AG & ANR vs Natco Pharma, [xi], held that, even during the pendency of the post-grant opposition, the rights of a patentee subsist. In India, a patent application can be filed, either alone or jointly, by true and first inventor or his assignee. The term of every patent in India is twenty years from the date of filing the patent application.
However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of twenty years begins from the priority date.[xii] It also allows the compulsory licensing of the patent subject to the fulfillment of certain conditions. Chapter 3[xiii] deals with substantive and procedural aspects of the application for patents. Section 48[xiv] gives exclusive rights to owners to use their product or process and also prohibit others from using, making, selling or reproducing it.
According to Section 50 (1) co-owners of a patent will be entitled to an equal undivided share in the patent.[xv] Section 105 gives district court the jurisdiction to entertain suits relating to the infringement of patents.[xvi] India is signatory to numerous international conventions like Paris Convention, Berne Convention, etc. and entire Chapter 22 of Patent Act is dedicated to international agreements on patents to which India is signatory to.[xvii]
CONCLUSION
It is believed that the concept of intellectual property, specially patent is one of the most important concepts that mankind has ever come up with. A patent is related to the creation or invention in the field of science and technology and covers either a product or a process or both. The prime purpose of the patent system is to encourage innovation and creativity without which entire human civilization would be well on its way to the stone age. Numerous international conventions and national laws have been implemented to protect patents, which is indeed one of the most important notion for mankind.
ENDNOTES
[i] FindLaw “What is Patent Law?”, accessed at June 20, 2016, available at: https://hirealawyer.findlaw.com/choosing-the-right lawyer/patents.html#:~:text=Patent%20law%20is%20the%20branch,%2C%20heating%20coils%2C%20or%20zippers [ii] Paul S. Hunter “The importance of Patents”, available at July 1,2005, accessed at: https://www.labnews.co.uk/article/2029687/the_importance_of_patents#:~:text=A%20patent%20provides%20its%20owner,or%20selling%20the%20patented%20invention. [iii] Widerman Malek “Why are Patents important?”, available at May 2, 2015, accessed at: https://www.legalteamusa.net/why-are-patents-important/ [iv] Agreement on Trade-Related Aspects of Intellectual Property Rights. art. 27(1995). [v] Id. At iv. [vi] Id. At iv. [vii] Id. At iv. [viii] Agreement on Trade-Related Aspects of Intellectual Property Rights. art. 29(1995).
[ix] Agreement on Trade-Related Aspects of Intellectual Property Rights. art. 28(1995). [x] Vijay Pal Dalmia “Patent law in India: Everything you must know”, accessed at June 11,2015, available at: https://www.mondaq.com/india/patent/403564/patent-law-in-india--everything-you-must-know. [xi] Novartis AG & ANR v. Natco Pharma Ltd, CS (COMM) 229/2019 and I.As. 11304/2019, 11305/2019. [xii] Id. At x.
[xiii] The Patents Act Chapter 3(1970).
[xiv] The Patents Act § 48 (1970). [xv] The Patents Act § 50(1) (1970). [xvi] The Patents Act § 105 (1970).
[xvii] The Patents Act Chapter 22(1970).
ABOUT THE AUTHOR
This blog has been authored by Palak Gupta, who is a 2nd Year BB.A., LL.B. (Hons.) student at Symbiosis Law School, Nagpur & Sadin Karki, who is a 2nd Year B.A., LL.B. (Hons.) student at National Law College, Tribhuvan University, Nepal.
[PUBLICATION NO. TLG_BLOG_20_9104]
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