This article has been written by Ms. Ekagrata Kalra, a 4^th year student of Vivekananda Institute of Professional Studies, GGSIPU.

Meaning Of Patent

A patent is an exclusive right provided by the government to the inventor to prevent others from using, producing, and selling an invention for a set amount of time. The main goal of patent law is to encourage innovation by giving inventors exclusive rights over their inventions for a limited period of time. By having the legal right to exclude others from making, using, selling, or importing their invention, inventors are incentivized to invest time, effort, and resources into developing new and useful inventions. This, in turn, can lead to a more vibrant and dynamic economy, as well as advances in science, technology, and other fields. By promoting innovation, patent law can help to drive progress and benefit society as a whole. Modern terminology typically refers to the patent as the right given to an inventor for his invention of any novel, practical, non-obvious procedure, machine, manufactured good, or material composition. The Latin word “patere,” which meaning “to lay open” or “to make available for public scrutiny,” is where the word “patent” first appeared.

The History of Patent Law in India

The Indian Patents and Designs Act, which was passed in 1911, marks the beginning of Indian patent law. The present Patents Act 1970, which amended and consolidated India’s pre-existing patent law, went into effect in 1972. The Justice Ann report, which was produced by the Iyengar Rajagopala-led Ayyangar Committee, served as the foundation for the Patent Act. One of the suggestions was to issue process patents for chemical, pharmaceutical, and food developments. The Patents (Amendment) Act, 2005 made additional changes to the Patents Act, 1970 in order to extend product patents to all technological fields, including food, medicine, chemicals, and microorganisms.

In the case of Diamond v. Chakrabarty Microbes, in particular genetically modified microorganisms, were the main subject of this lawsuit. A patent for a process was requested. It was asserted that the process, the outcome, and the component pieces were all patentable. Given that they are living things, people have questioned whether bacteria may be patented. Patents can only be obtained for microorganisms discovered in living things. In addition, the Supreme Court held that anything created by a human, including artificial animals, qualifies as a patentable invention.

The portion of the intellectual property legislation that deals with new innovations is called the Patents Act. Product patents and process patents are the two categories of patents recognized by the Patents Act of 1970. The process patent describes the steps taken to produce a patent, whereas the product patent describes the final product or output of a product. According to the Patent Act, if a procedure or product is novel, involves an innovative step, and has the potential for industrial use, it qualifies as an invention.

Parameters for Being an Invention

Any invention or technology that has not been anticipated by a prior publication in or outside of India is considered novel under Section 2(l) of the act. The novelty cannot be considered part of a previous act or belong in the public domain. Patents may be registered internationally. New inventions are always granted a patent. It shouldn’t have been created either domestically or abroad so that it can be a novelty.

The Patents Act lists non-patentable subject matter in Sections 3 and 4. The innovation contains patentable subject matter if it does not violate any of Sections 3 or 4 of the Patent Act (subject to the satisfaction of the other criteria).

In the case of Novartis AG v. Union of India , Novartis’ bid for a patent on the anti-cancer drug Glivec was refused by the Supreme Court. The drug Glivec is used to treat chronic myeloid leukaemia. Novartis’ claim had been denied by the patent office on the grounds that it was in violation of Section 3(d) of the Indian Patents Act and that the drug had not shown any improvement in proven clinical efficacy over its earlier form. This was disputed by the firm, and the supreme court ultimately heard arguments on the subject. The following was necessary of the Court to consider:

• The invention falls under Section 3(d)?
• What is meant by Section 3(d)?

The Supreme Court concluded that Glivec was merely a modified form of the medicine rather than a totally novel substance. It failed the Section 3 test as a result. Increased effectiveness is listed as a prerequisite in the section, but this requirement was not satisfied. Novartis attempted to combat this, but ineffectively. The court held that in the context of pharmaceuticals, a drug’s efficacy is defined as its therapeutic efficacy; the fact that certain patients benefited from it does not mean that it complied with this condition. The Court went on to say that stronger rules must be put in place when granting patents for medicines that save lives in order to protect the lives of the general public. At all costs, the consequence must be prevented.

To qualify for a patent, an innovation must be a technique or a product that:

Novelty: The invention must produce a novel idea, thing, or method. It shouldn’t be assumed by a document, a granted patent, a published patent, non-patent literature, or any other form that is already in the public domain. It must be distinct from what is currently understood.

Inventive Step: The creator must have contributed some original thinking to the invention. It should be something that an expert in the field would not anticipate.

Industrial Use: Patents are issued to ensure that the creator can freely use his or her innovation without worrying about rivalry. It is essential that the invention in this situation be usable and have industrial applications. A product or procedure based on an invention should be produced or used.

Term of Patent

In India, the term of a patent is typically 20 years from the date of filing, regardless of whether the patent application was filed with a provisional or complete specification. However, the 20-year term starts running for applications submitted under the Patent Cooperative Treaty (PCT) from the date of the international filing.

The Steps for Obtaining a Patent in India

In India, the true and first inventor or his assignee may file a patent application either individually or jointly.

Within 48 months after the application’s priority date or date of filing, whichever is later, a request for examination must be submitted to the Indian Patent Office for the purpose of having the application’s merits reviewed. The applicant has a chance to address any concerns raised in the first examination report once it is released. The applicant must comply with the conditions within 6 months of the initial examination report’s release; however, the applicant may request an additional 3 months.

If the first examination report’s requirements are not met within the allotted nine months, the application is deemed to have been abandoned by the applicant. After all objections have been resolved and all conditions have been met, the patent is awarded and published in the Patent Office Journal.

Infringement of Patent

In India, patent infringement lawsuits can only be filed after a patent has been granted, but they may include a claim that dates back to the date the patent application was published. A patent is violated when an innovation is made, imported, used, offered for sale, or sold within of India without authorization. Only a civil action may be brought in a court of law in accordance with the (Indian) Patents Act, 1970. A lawsuit for infringement may also be refuted on a number of grounds, including those that prevent India from granting patents, and on the basis of such a refutation, the patent may be revoked.

The statute of limitations for filing a lawsuit for patent infringement is three years from the date of infringement and is governed by the Indian Limitation Act. It is important to remember that the statute of limitations for the lawsuit begins to run from the date of the infringement, not the date of the grant.

It’s also important to note that the patentee will not be permitted to initiate legal action for infringements that occurred between the time the patent lost its validity and the date the application to reinstate it was published if the patent had ceased to exist due to non-payment of the renewal fee.

The burden of proving that an infringement has taken place falls on the patentee when a product-based patent invention is allegedly being violated. However, if the patentee is able to convince the court that despite reasonable attempts, he or she has been unable to identify the defendant’s method of operation, the burden of proof may shift to the defendant or infringer in the case of a process patent.

In the case of F. Hoffmann-La Roche Ltd. v. Cipla Ltd., Cipla Ltd, an Indian pharmaceutical business, was sued by Hoffman, a multinational healthcare company based in Switzerland. The Roche drug “Erlotinib,” which Roche marketed as TARCEVA, was the subject of the dispute in the Delhi High Court. The chemical that underpins both Roche and Cipla is erlotinib hydrochloride. In February 2007, Roche started marketing the drug as TARCEVA after claiming to have a patent for “Erlotinib.” It was made public that Cipla planned to release a generic version of “Erlotinib” in January 2008. This prompted Roche to accuse Cipla of infringing upon intellectual property. Roche ultimately received a favourable decision. The ruling outlined in detail the laws that govern a number of crucial aspects of a patent infringement. Cipla was required to account for the manufacturing and distribution of Erlocip, and Roche was awarded cost of Rs. 5,000,000.

References

1. (Dalmia, Patents law in India – everything you must know – patent – india 2017)
2. (Bhandari, Overview of patent law in India 2020)
3. (S.S. Rana & Co, Patent infringement 2022)
4. (Sharma, Patent laws in India : Basics you must know 2019)
5. (IPEXCEL, What is patentability criteria for the patent)
6. (Jt, What are the criteria for patenting my invention?: Brealant 2022)

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