Suppose that you have a groundbreaking idea.

You attempt to create the

application. Now that your innovation is a reality, it functions. However, along
with all the enthusiasm over this creation comes some worry that the concept
will be stolen. One might apply for a patent for their innovations to get
ownership of the invention and prevent it from being replicated. Let us walk
you through real-life examples of patents. As many of us would have seen a
movie called “Padman”, which is based on a real-life based story of a social
entrepreneur from Coimbatore, Arunachalam Muruganatham. He got the
patent rights to invent the low-cost sanitary pad-making machine. I hope now
you understand a little bit about what a patent is, and to understand it in
depth, let us go through the article.

A patent is one of the types of Intellectual Property Rights. Many people are
unclear about the concept of intellectual property rights. The average person
assumes that IPR is reserved for extremely serious inventors when they hear
people discuss it. It is untrue. Anything you make with your mind belongs to
you and is intellectual property. Such a creator’s ownership rights over their
works are known as intellectual property rights. It is as simple as it looks
difficult. To claim IPR, you do not need to invent something revolutionary.
Intellectual property law allows even simple works of art created by children
to be safeguarded. An intellectual property right is an intangible right. Like
normal property, you have a right to your intellectual property. An exclusive
monopoly is granted to the owner of the intellectual property right to profit
from the creation. You can decide whether to sell it or keep it in reserve. The
catch is that only you can decide whether to give consent to someone using
your intellectual property.

A patent is an exclusive right granted by the Government to the inventor to

exclude others to use, make and sell an invention is a specific period of time.
A patent is also available for improvement in their previous Invention. The
main motto to enact patent law is to encourage inventors to contribute more
in their field by awarding them exclusive rights for their inventions. In
modern terms, the patent is usually referred to as the right granted to an
inventor for his Invention of any new, useful, non-obvious process, machine,
article of manufacture, or composition of matter. The word “patent” is
referred from a Latin term “patere” which means “to lay open,” i.e. to make
available for public inspection. There are three basic tests for any invention
to be patentable:

 Firstly, the invention must be novel, meaning thereby that the

Invention must not be in existence.
 Secondly, the Invention must be non- obvious, i.e. the Invention
must be a significant improvement to the previous one; mere
change in technology will not give the right of the patent to the
inventor.
 Thirdly, the invention must be useful in a bonafide manner, meaning
thereby that the Invention must not be solely used in any illegal
work and is useful to the world in a bonafide manner.
An invention considered as new if, on the date of filing the application, any
such invention is not known to the public in any form, i.e. oral, writing, or any
other form. Anything shall not be termed as inventive if such a thing is
already known to the public domain. The patent has a limited term of 20
years, which is counted from the date of filing of the patent application. A
patent is a territorial right. Thus it can only be applied in the country where it
has been granted. A patent is a territorial right. Thus it can only be applied in
the country where it has been granted. Therefore, any legal action against
infringement or infringement of patent rights can only be taken in that
country. To obtain patent protection in different countries, each country must
apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to file
an international patent application in which a patent can be filed through a
single patent application in a large number of countries. However, the PCT of
a patent remains discretionary of the individual patent office only after the
application is filed.

Under the Indian patent law, a patent can be obtained only for an invention
which is new and useful. The invention must relate to the machine, article or
substance produced by a manufacturer, or the process of manufacture of an
article. A patent may also be obtained for innovation of an article or of a
process of manufacture. In respect to medicine or drug and certain classes of
chemicals, no patent is granted for the substance itself even if it is new, but
the process of manufacturing and substance is patentable. The application
for a patent must be true and the first inventor or the person who has derived
title from him, the right to apply for a patent being assignable.

Some inventions cannot be patented. In the European Patent Convention

(EPC) law there is the list of non-patentable subject-matter which includes
methods of medical treatment or diagnosis, and new plant or animal
varieties. Further information on such fields can be obtained from a patent
attorney. Nor many patents be granted for inventions whose exploitation
would be contrary to public order or morality (obvious examples being land-
mines or letter-bombs).The following are not regarded as inventions,
discoveries, innovations, scientific theories and mathematical methods,
aesthetic creations, such as art or literature works or art of writing, schemes,
rules and methods for performing mental acts, playing games or doing
business, presentations of information, computer software.

History of Patent
The first step of the patent in India was Act VI of 1856. The main objective of
the legislation was to encourage the respective inventions of new and useful
manufactures and to induce inventors to reveal their inventions and make
available for public. The Act was repealed by Act IX of 1857 as it had been
enacted without the approval of the British Crown. Fresh legislation was
enacted for granting ‘exclusive privileges’ was introduced in 1859 as Act XV
of 1859. This legislation undergoes specific modifications of the previous
legislation, namely, grant of exclusive privileges to useful inventions only, an
extension of priority period from 6 months to 12 months. The Act excluded
importers from the definition of an inventor. The Act was then amended in
1872, 1883 and 1888.

The Indian Patent and Design Act, 1911 repealed all previous acts. The
Patents Act 1970, along with the Patent Rules 1972, came into force on 20
April 1972, replacing the Indian Patent and Design Act 1911. The Patent Act
is basically based on the recommendations of the report Justice Ann. The
Ayyangar Committee headed by Rajagopala Iyengar. One of the
recommendations was the allowance of process patents in relation to
inventions related to drugs, drugs, food and chemicals. Again The Patents
Act, 1970 was amended by the Patents (Amendment) Act, 2005 regarding
extending product patents in all areas of technology including food, medicine,
chemicals and microorganisms. Following the amendment, provisions relating
to exclusive marketing rights (EMR) have been repealed, and a provision has
been introduced to enable the grant of compulsory licenses. Provisions
related to pre-grant and anti-post protests have also been introduced.

Types of Intellectual Property Rights

Intellectual property law governs the use of Intellectual Property Rights (IPR).
Industrial property rights and copyrights are the two categories into which
intellectual property rights fall. Patents, trademarks, designs, integrated
circuits, geographical indications, plant variety protection, trade secrets,
traditional knowledge, and biodiversity are all examples of intellectual
property rights. Authorship rights, artistic rights, film rights, transmission
rights, performer rights, etc. are all included in copyrights. Trade secret
protection (like data exclusivity) is non-existent in India.

Tenure of Intellectual Property Rights

While other properties’ patent terms range from 10-15 years and are
extendable for some chosen properties, industrial property rights patent
terms last for 20 years from the date of the initial filing. The protection period
for copyrights, particularly author’s rights, is the author’s lifespan plus 60
years. The length is 60 years in several different situations, particularly
copyright in government works, works of public enterprises, works of
international organizations, etc.

Objective and role of international

and national governing bodies
The World Trade Organization (WTO) replaced the General Agreement on
Tariffs and Trade (GATT) and added protection for individual rights like
intellectual property rights. The fundamental goal was to create an
international trading system that was predictable and stable while keeping an
eye on and resolving international conflicts. With the founding of the
WTO, trade-related aspects of Intellectual Property Rights (TRIPS) came into
effect. India has been a signatory since 1995, updating the infrastructure of
the Patents Act, 1970, within the allotted transition period. The World
Intellectual Property Organization (WIPO) is a global organization that fosters
cooperation between nations in the development, use, and preservation of
works of the human mind for the economic, social, and cultural advancement
of all people.

The Department of Industrial Policy and Promotion (DIPP), the Department of

Pharmaceuticals, and the Department of Commerce, various Ministries are
crucial to India’s application of intellectual property rights, particularly those
about patents. Applications for patents are accepted and granted at the
Indian Patent Office (IPO), which has offices in Mumbai, New Delhi, Chennai,
and Kolkata.

Conventions and treaties dealing

with Intellectual Property Rights
The Paris Convention (PC), 1883, and the Patent Cooperation Treaty (PCT),
1970, play a significant role concerning patents among the several
conventions and treaties dealing with intellectual property rights. The Paris
Agreement includes a clause that allows countries that are party to the
Convention to take precedence over the invention. In other words, the
Convention has tried to bring national treatment as both India and the foreign
national’s country are parties to the Paris Treaty. The Convention has brought
about national treatment, where a foreign person is treated as an Indian
national.

For the Patent Cooperation Treaty (PCT) members, a single patent filing
process has been introduced under the Patent Cooperation Treaty. The
Treaty is advantageous since it eliminates translations and repetition of
patent office processes through single filing and examination procedures.
Additionally, the provision saves time while saving money during filings.

What is a patent
Before getting into detail about what a patent is, let’s discuss something else
first. You have a talent for construction and a desire to amass wealth.
Unfortunately, that idea was never realized since someone else stole your
idea because you were unaware of a (not so) minor thing called patents. By
registering your idea for a patent, all of this can be prevented.

A patent is a legal document that the government issues to the creator,

giving him the exclusive right to sell, manufacture, use, and import the
invention for a predetermined amount of time following the publication of the
idea. By limiting who can sell their products on their behalf, patents are
required by law to safeguard innovators. The sources of the phrase “patent”
are old French, old Latin, and old English. From the Latin “patentem” and
French “patente”, which both indicate the open letter, it first appeared in the
late 13th century. In the 1580s, the phrase took on its current meaning when
it was explained as a government-issued permit to create and sell a specific
good.

A patent is used in business to develop, promote, and sell a product. For

many of the products that people purchase, patents are employed. Once a
patent application has been accepted by the government, it generally lasts
for 20 years from the application date. An official government letter patent is
the document that gives a person or business the sole right to sell a product.
The patent applicant or seller may start collecting royalties for their goods
once the patent has been processed and authorized. A royalty is a payment
made to the creator of a product in exchange for the right to use it; it serves
as reimbursement for their labor. This might take the form of a television
commercial producer paying a songwriter royalties for the usage of their
music in a commercial. At least until the product is released to the market,
patents and royalties are typically maintained confidentially by firms through
solid agreements and trade secrets. Regardless of whether a patent
application is filed with a provisional or complete specification, all Indian
patents have a 20-year term beginning on the date of filing. The 20-year
period, however, starts on the date of the international filing for applications
submitted under the Patent Cooperation Treaty (PCT).

Difference between patents,

trademarks and copyrights
Parameters Patent Trademark Copyright

Inventions include Any word, expression, sign,

Books, essays, music,
modifications to existing and/or artwork that
photography, sculptures,
What is processes, tools, specifies and sets one
dances, sound recordings,
safeguarded? manufactured goods, party’s goods apart from
movies, and other original
and material another’s in terms of their
works of authorship.
compositions. source.

Conditions to An invention must be A mark needs to be unique An original, innovative, and

be novel, practical, and (i.e., it must be able to tangible piece of work is
safeguarded original. ascertain the origin of a required.
 certain good).

Duration of Whenever the mark is The author’s lifespan is +70

20 years
protection utilized in commerce. more years.

Right to control over the

Right to use the mark and
Right to stop others copyrighted works’
to stop others from using it
from manufacturing, dissemination, presentation
Rights or marks that are identical
distributing, or bringing in public, and exhibition, as
conferred in a way that could lead to
in the patented well as their reproduction
chaos about the source of
innovation and creation of creative
the products or services.
works.

Criteria for patentability

Only if an innovation complies with the criteria for patentability will it be
eligible for a patent grant in India. The innovation must meet all of the
conditions that evaluate its suitability for a patent grant from various angles
to be considered patentable. Compared to other standards, some of them are
easier to meet, but all of them are equally crucial for determining
patentability. The following are the three requisites for patentability criteria:

Novelty
Only if a product or method is both innovative and inventive, will it be
regarded as an invention under the Patents Act. Simply said, novelty refers to
anything being new compared to what it was on the priority date of the
patent application. If an innovation departs from the “prior art,” which is what
already exists, it will be seen as unique. Previous art references are never
pooled for novelty analysis; rather, novelty is always evaluated in light of a
particular prior art reference at a time. However, a prior art citation may be
interpreted to include general knowledge of the art that isn’t stated explicitly
in the reference. Novelty is included in many sections relating to inspection,
anticipation, objection, and revocation but is not defined by the Patents Act.

Inventive step
Of all the criteria for patentability, the inventive step criterion is the most
ambiguous and difficult to define. The Indian Patents Act offers non-
obviousness and technical advancement or economic relevance as two
criteria for evaluating inventive steps. The Patents Act defines inventive steps
in Section 2(ja). The inventor must make a creative contribution to the
invention. It needs to be something that a skilled craftsperson wouldn’t
anticipate. Let’s say an innovator creates a device to address a technological
issue. A different expert in the same sector offers the same solution by
drawing on his knowledge or absorbing instruction. The inventor’s
technological solution won’t be regarded as original in that situation because
it was just a suggestion or motive. The Supreme Court defined the term
“inventive step” in the Biswanath Prasad Radhey Shyam case in 1978, and it
is being used for inventive step analysis today.

Industrial application
According to Section 2(ac) of the Patents Act, “the creation is a patent of
being used or created in a sector.” It implies that a product must be useful to
be patentable because the invention cannot exist in a vacuum and must
apply to all fields. A product will be deemed to be industrially applicable if it
can be produced consistently and has at least one application in a given
industry. For a procedure to meet this condition, the industry must be able to
employ it. Users that are uncertain, hazy, future, or non-specific are not
regarded as legitimate users. The same is true when a product or procedure
is used in a minimal or untrustworthy way.

The Delhi High Court noted that an invention must be economically feasible
in a case involving Cipla and Roche after reviewing various Indian and
international cases about the utility or industrial application criteria.
Commercial use is required, although commercial development need not be
demonstrated. Fundamentally, the invention must serve the function stated
in a patent specification and have a practical application. Nothing more will
be necessary to demonstrate an invention’s utility for patentability.

What cannot be patented

A novel product or technique must have an innovative step in order to be
patentable in India. It may also be manufactured or used in the industry. The
invention must also satisfy certain criteria relating to novelty, innovative
step, and industrial applicability in order to be patentable. Please go through
the criteria of patentability as discussed earlier in this article before moving
on to “What cannot be Patented in India?”

Sections 3 and 4 of the Indian Patent Act, 1970 deal with those discoveries or
methods that do not fall under the ambit of the Act and therefore are not
patentable. The reasons why these are not patentable are that sometimes
the inventions or discoveries are against the public policy, the particular
invention or discovery has already existed in nature, meaning thereby, that
any discovery of living or non-living thing is already existing in nature and is
known, and invention or discoveries are against the natural laws. The
following are some of the examples of inventions that cannot be patented:
  A patent cannot be issued for a device that is used for gambling
machines, bank lockers, or housebreaking. A patent cannot also be
granted to software that can help someone get into someone’s
email by hacking it. These inventions are frivolous in nature and go
against natural laws.
 Any invention of medical treatment or a method related to medical
treatment cannot be patented. The reason is that the doctors or
surgeons will not be able to perform surgeries because they will be
worried about patent infringement at that point in time.
 Any discovery or invention cannot be patented if it is against the
established natural laws or principles. For example, if someone
makes a clock that has 10 hours, which is divided into 100 minutes
and 100 seconds each. It shall go against natural laws or universal
law.
 This does not apply to all innovations or discoveries, such as Isaac
Newton’s law of gravity or Albert Einstein’s relativity formula. Simply
put, a scientific theory or a rule of nature cannot be patented.

Content of a patent
The title, bibliography, description, previous art, synopsis, high-quality
description of the invention, statistics, figures, and claims that include both
independent and dependent claims, are all included in a patent document.
Understanding that researchers, including scientists and academicians, are
accustomed to writing research articles for journals and the people
knowledgeable in research activity create their own complete/provisional
specifications.

What can be patented?

Sections 3 and 4 of the Indian Patents Act, 1970 clearly mentioned the
exclusions regarding what can be patented in India. There are certain criteria
which have to be fulfilled to obtain a patent in India. They are:

 Patent subject:
The most important consideration is to determine whether the Invention
relates to a patent subject matter. Sections 3 and 4 of the Patents Act list
non-patentable subject matter. Unless the Invention comes under any
provision of Section 3 or 4, it means that it consists of a subject for a patent.

 Novelty:
Innovation is an important criterion in determining the patent potential of an
invention. Under Section 2(l) of the Patent Act, a novelty or new Invention is
defined as “no invention or technology published in any document before the
date of filing of a patent application, anywhere in the country or the world”.
The complete specification, that is, the subject matter has not fallen into the
public domain or is not part of state of the art”.
Simply, the novelty requirement basically states that an invention that should
never have been published in the public domain. It must be the newest which
have no same or similar prior arts.

 Inventive steps or non-clarity:

Under Section 2(ja) of the Patents Act, an inventive step is defined as “the
characteristic of an invention that involves technological advancement or is
of economic importance or both, as compared to existing knowledge, and
invention not obvious to a person skilled in the art.” This means that the
invention should not be obvious to a person skilled in the same field where
the invention is concerned. It should not be inventive and obvious for a
person skilled in the same field.

Click Above
 Capable of industrial application:
Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the
invention is capable of being made or used in an industry”. This basically
means that the Invention cannot exist in the abstract. It must be capable of
being applied in any industry, which means that it must have practical utility
in respect of patent.

These are statutory criteria for the patent of an invention. In addition, other
important criteria for obtaining a patent is the disclosure of a competent
patent. A competent patent disclosure means a patent draft specification
must adequately disclose the Invention, so as to enable a person skilled in
the same field related to carrying out the Invention with undue efforts.

Rights and obligations of the

patentee

Rights of Patentee
 Right to exploit patent: A patentee has the exclusive right to make
use, exercise, sell or distribute the patented article or substance in
India, or to use or exercise the method or process if the patent is for
a person. This right can be exercised either by the patentee himself
or by his agent or licensees. The patentee’s rights are exercisable
only during the term of the patent.
 Right to grant license: The patentee has the discretion to transfer
rights or grant licenses or enter into some other arrangement for a
consideration. A license or an assignment must be in writing and
registered with the Controller of Patents, for it to be legitimate and
valid. The document assigning a patent is not admitted as evidence
 of title of any person to a patent unless registered and this is
applicable to assignee not to the assignor.
 Right to Surrender: A patentee has the right to surrender his patent,
but before accepting the offer of surrender, a notice of surrender is
given to persons whose name is entered in the register as having an
interest in the patent and their objections, if any, considered. The
application for surrender is also published in the Official Gazette to
enable interested persons to oppose.
 Right to sue for infringement: The patentee has a right to institute
proceedings for infringement of the patent in a District Court having
jurisdiction to try the suit.

Obligations of patentee
 Government use of patents: A patented invention may be used or
even acquired by the Government, for its use only; it is to be
understood that the Government may also restrict or prohibit the
usage of the patent under specific circumstances. In case of a
patent in respect of any medicine or drug, it may be imported by the
Government for its own use or for distribution in any dispensary,
hospital or other medical institution run by or on behalf of the
Government. The aforesaid use can be made without the consent of
the patentee or payment of any royalties. Apart from this, the
Government may also sell the article manufactured by patented
process on royalties or may also require a patent on paying suitable
compensation.
 Compulsory licenses: If the patent is not worked satisfactorily to
meet the reasonable requirements of the public, at a reasonable
price, the Controller may grant compulsory licenses to any applicant
to work the patent. A compulsory license is a provision under the
Indian Patent Act which grants power to the Government to mandate
a generic drug maker to manufacture inexpensive medicine in public
interest even as a patent in the product is valid. Compulsory
licenses may also be obtained in respect of related patents where
one patent cannot be worked without using the related patent.
 Revocation of patent: A patent may be revoked in cases where there
has been no work or unsatisfactory result to the demand of the
public in respect of the patented invention.
 Invention for defence purposes: Such patents may be subject to
certain secrecy provisions, i.e. publication of the Invention may be
restricted or prohibited by directions of Controller. Upon continuance
of such order or prohibition of publication or communication of
patented Invention, the application is debarred for using it, and the
Central Government might use it on payment of royalties to the
applicant.
  Restored Patents: Once lapsed, a patent may be restored, provided
that few limitations are imposed on the right of the patentee. When
the infringement was made between the period of the date of
infringement and the date of the advertisement of the application
for reinstatement, the patent has no authority to take action for
infringement.

Procedure of Patent
 Step 1: Write about inventions (idea or concept) with each and every
detail.
Collect all information about your Invention such as:

1. Field of Invention
2. What does the Invention describe
3. How does it work
4. Benefits of Invention
If you worked on the Invention and during the research and development
phase, you should have some call lab records which are duly signed with the
date by you and the concerned authority.

 Step 2: It must involve a diagram, drawing and sketch explains the

Invention
Drawings and drawings should be designed so that the visual work can be
better explained with the invention work. They play an important role in
patent applications.

 Step 3: To check whether the Invention is patentable subject or not.

Not all inventions can be patentable, as per the Indian Patent Act there are
some inventions which have not been declared patentable (inventions are not
patentable).

 Step 4: Patent Discovery

The next step will be to find out if your Invention meets all patent criteria as
per the Indian Patent Act-

1. The invention must be novel.

2. The Invention must be non- obvious.
3. The Invention must have industrial applications.

 Step 5: File Patent Application

If you are at a very early stage in research and development for your
Invention, then you can go for a provisional application. It offers the following
benefits:
 1. Filing date.
2. 12 months time for filing full specification.
3. Lesser cost.
After filing a provisional application, you secure the filing date, which is very
important in the patent world. You get 12 months to come up with the
complete specification; your patent application will be removed at the end of
12 months.

When you have completed the required documents and your research work is
at a level where you can have prototypes and experimental results to prove
your inventive move; you can file the complete specification with the patent
application.

Filing the provisional specification is an optional step if you are in the stage
where you have complete knowledge about your Invention you can go
straight to the full specification.

 Step 6: Publication of the application

Upon filing the complete specification along with the application for the
patent, the application is published 18 months after the first filing.

If you do not wish to wait until the expiration of 18 months from the filing
date to publish your patent application, an initial publication request may be
made with the prescribed fee. The patent application is usually published
early as a one-month form request.

 Step 7: Request for Examination

The patent application is scrutinized only after receiving a request for an RFE
examination. After receiving this request, the Controller gives your patent
application to a patent examiner who examines the patent application such
as the various patent eligibility criteria:

1. Patent subject
2. Newness
3. Lack of clarity
4. Inventory steps
5. Industrial application
6. By enabling
The examiner makes the first examination report of the patent application
upon a review for the above conditions. This is called patent prosecution.
Everything that happens for a patent application before the grant of a patent
is usually called patent prosecution.
The first examination report submitted to the Controller by the examiner
usually includes prior art (existing documents prior to the filing date) that are
similar to the claimed invention and is also reported to the patent applicant.

 Step 8: Answer the objections

Most patent applicants will receive some type of objections based on the
examination report. The best thing is to analyze the examination report with
the patent professional (patent agent) and react to the objections in the
examination report.

This is an opportunity for an investor to communicate his novelty over the

prior art in examination reports. Inventors and patent agents create and send
a test response that tries to prove that their Invention is indeed patentable
and meets all patent criteria.

 Step 9: clearance of objections

The Controller and the patent applicant is connected for ensuring that all
objections raised regarding the invention or application is resolved and the
inventor has a fair chance to prove his point and establish novelty and
inventive steps on other existing arts.

Upon receiving a patent application in order for grant, it is the first grant for a
patent applicant.

 Step 10:
Once all patent requirements are met, the application will be placed for the
grant. The grant of a patent is notified in the Patent Journal, which is
published periodically.

Grounds for opposition

An application for a patent may be opposed by either a prior grant or a
subsequent grant by any person on the grounds specified in s 25 (1) and 25
(2) of the former Act. No other grounds stated in the Act can be taken to
oppose the patent. Some major opposition grounds, common to both pre-
grant and post-grant opposition, are mentioned below:

1. The Invention was published previously in India or elsewhere or was

claimed previously in India.
2. The Invention is the formation of a part of the prior public knowledge
or prior public use or traditional knowledge of any community.
3. The Invention is obvious and lacks an inventive step.
4. The Invention does not constitute an invention within the meaning of
the Act, or the Invention is not patentable under the Act.
 5. Failure to disclose information or furnishing false information
relating to foreign by the applicant.
Pre-Grant Protest: Section 25 (1) of the Patent Act and Rule 55 of the Patent
Rules, 2003 provide the procedure to be followed for pre-grant opposition.
Pre-grant opposition can be initiated by anyone after the application is
published and before the patent is granted. If a request for examination is
filed to oppose the application, the Controller considers representation only.
If a request for examination has not been made by the applicant, it is
possible for the opponent as an interested person to first file a request for
examination under Section 11B, and then file a pre-grant opposition.

Post-grant opposition: The procedure is followed to oppose the grant

under Section 25 (2) of the Patents Act, 1970 and Rule 55A to 70 of the
Patent Rules, 2003. A Post-grant opposition can be filed by any person
interested in any of the specific grounds before a period of one year from the
date of publication of the grant of the patent. Unlike a pre-grant protest, a
pre-grant protest must be filed by an individual and not by a person. The
expression (people interested) is defined under section 2(t) of the Patents
Act, 1970 wherein a person/party is engaged, or is conducting research in the
same field with which the Invention (which is to be opposed) is concerned.

What are the Authorities concerning

patent
The Controller of Patents is considered as the principal officer responsible for
administering the patent system in India. The Controller is regarded as the
overall supervisor of the four Patent Offices in Chennai, Delhi, Mumbai and
Kolkata. Since the Controller also acts as the Registrar of Trademarks with
the Head Office of the Trade Office in Mumbai, the Controller acts as a patent
from his office in Mumbai. Officially, the patent has its head office in Kolkata
(Calcutta). Patents granted under the Patents Act and other officers of the
Patent Office discharge their functions under the direction or regulation of the
Controller.

Patent Infringement
Patent infringement is a violation which involves the unauthorized use,
production, sale, or offer of sale of the subject matter or Invention of
another’s patent. There are many different types of patents, such as utility
patents, design patents, and plant patents. The basic idea behind patent
infringement is that unauthorized parties are not allowed to use patents
without the owner’s permission.

When there is infringement of patent, the court generally compares the

subject matter covered under the patent with the used subject matter by the
“infringer”, infringement occurs when the infringer Uses patent material from
in the exact form. Patent infringement is an act of any unauthorized
manufacture, sale, or use of a patented invention. Patent infringement occurs
directly or indirectly.

Direct patent infringement: The most common form of infringement is direct

infringement, where the Invention that infringes patent claims is actually
described, or the Invention performs substantially the same function.

Indirect patent infringement: Another form of patent infringement is indirect

infringement, which is divided into two types:

 Infringement by inducement is any activity by any third party that

causes another person to infringe the patent directly. This may
include selling parts that can only be used realistically for a
patented invention, selling an invention with instructions to use in a
certain method that infringes on a method patent or licenses an
invention that is covered by the patent of another. The inducer must
assist intentional infringement, but does not require intent to
infringe on the patent.
 Contributory infringement is the sale of components of material that
are made for use in a patented invention and have no other
commercial use. There is a significant overlap with indications, but
contributor violations require a high level of delay. Violations of the
seller must have direct infringement intent. To be an obligation for
indirect violations, a direct violation must also be an indirect act.

Doctrine of Equivalents And Doctrine

of Colourable Variation
Patent infringement generally categorized into two, i.e. literal infringement
and infringement in the doctrine of equivalents. The term “literal
infringement” means that each element heard in a claim has the same
correspondence in the alleged infringement device or process. However,
even if there are no literal violations, a claim can be infringed under the
doctrine of equivalents if the accused device or some other element of the
process performs the same function, in substantially the same way to obtain
substantially the same result. The principle of equivalence is a legal rule in
most patent systems in the world that allows a court to hold a party liable for
patent infringement, even though the infringing instrument or process does
not fall within the literal scope of the patent claim, but Still equal to the
claimed Invention.

This is not an expansion of coverage of a claim permitted by the principle of

equivalence. Rather, the scope of coverage given to the patent owner is
limited by

(i) the “prosecution history estoppel” and

(ii) the principle of the prior art.

The analysis of infringement determines whether a claim claimed in a patent

“literally reads on the accused infringer’s instrument or process”, or covers
the allegedly infringing device in the doctrine of equivalents.

The steps in the analysis are:

 Oppose the scope of the “literal” language of claims.

 Comparing claims with the accused device or process to determine if
there is a literal violation.
 If there is no literal violation, reduce the scope of claims under the
principle of equality.
The doctrine of equivalents is considered as an equitable doctrine which
effectively expands the scope of the claims beyond their literal language to
the true scope of the inventor’s contribution to the art. However, there are
limitations in the scope of equivalents to which the patent owner is entitled.

Remedies for Patent Infringement

Patent infringement lawsuits can result in significantly higher losses than
other types of lawsuits. Some laws, such as the Patent Act, allow plaintiffs to
recover damages. Patent infringement is the illegal manufacture or usage of
an invention or improvement of someone else’s invention or subject matter
who owns a patent issued by the Government, without taking the owner’s
consent either by consent, license or waiver. Several remedies are available
to patent owners in the event of an infringement. Measures available in
patent infringement litigation may include monetary relief, equal relief and
costs, and attorneys’ fees.

Monetary Relief: Monetary relief in the form of compensatory damages is

available to prevent patent infringement:

1. Indemnity compensation – A patent owner may have lost profits for

infringement when they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can
be charged in cases of will or violation of will.
3. The time period for damages – The right to damages can be claimed
only after the date when the patent was issued and only 6 years
before the infringement claim is filed.
Equitable relief: Orders are issued by the court to prevent a person from
doing anything or Act. Injections are available in two forms:
 1. Preliminary injunction – Orders made in the initial stage of lawsuits
or lawsuits that prevent parties from doing an act that is in dispute
(such as making a patent product)
2. Permanent injunction – A final order of a court which permanently
ceases certain activities or takes various other actions.

Procedure for getting a patent in

India
When the application for a patent is filed for the grant of a patent, an
examination of the application has to be conducted in the Patent Office within
48 months from the date which the applicant specifies or from the date the
applicant has filed for the grant of a patent. 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 seek an
additional 3 months. If the first examination report’s conditions are not met
within the allotted nine months, the application is deemed to have been
withdrawn 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 patents and its types

The illegal use, production, sale, or offer to sell of the subject matter or a
proprietary invention by another is known as patent infringement. Utility
patents, design patents, and plant patents come in a variety of strong forms.
The core tenet of patent infringement is that inventions cannot be used by
unauthorized parties without the owner’s permission. Either directly or
indirectly, patents are violated:

Direct patent infringement

Direct infringement is the most frequent type of patent infringement when
the infringing invention is actually disclosed or serves essentially the same
purpose. In order to directly infringe a patent, a person needs to create, use,
offer to sell, or sell a patented invention without authorization. If a product or
service fits all of the criteria for a claim in the infringed patent, it qualifies as
an act of infringement even if it is not an exact replica of a good or service
provided by the patent holder. Generally, direct patent infringement happens
when a device that is commercially advertised, sold, or utilized without the
owner’s consent is materially similar to a patented device or innovation.
Indirect patent infringement
It is further divided into two categories:

Inducement infringement
An act by a third party that directly induces another person to violate the law
is known as an inducement infringement. This could involve leasing an
innovation that is protected by another person’s patent or selling parts that
can only be used practically with a patented device. Other examples include
selling an invention with directions to use it in a certain way that violates a
method patent. The inducer needs only help with deliberate infringement—
intentional infringement of the patent is not necessary.

Contributory infringement
The selling of materials created specifically for use in a patented invention
but with no other commercial purpose is known as “contributing
infringement.” While there is a substantial overlap with indicators,
contributing infractions call for a considerable amount of time. Seller
obligations must be broken to directly infringe. A direct breach must also be
indirect conduct for there to be a responsibility for it.

Compulsory licensing
One of the most significant provisions of the Indian Patents Act, 1970,
provided that certain requirements are met, is compulsory licensing. Any
interested person may, under the following criteria, apply to the Patent
Controller for the issuing of a compulsory patent license at any time following
the passing of three years from the date of the sealing of a patent. A
voluntary license is granted by a person to use any good. Possessing a
voluntary license is the first step. There are three justifications for requesting
the mandatory license. After three years from the day the patent was
granted, the license may be requested at any time. Anyone may request a
compulsory license. Whether it be a real person, a fake person, or a business.

Grounds for granting compulsory licensing

 There must be a justifiable demand.
 The item must not legitimately be in the public domain.
 The patented invention is not being used on Indian soil.
If one nation produces the COVID 19 vaccine, the other nations will receive
the identical vaccine. The WHO and TRIPS have public health on their
agenda. The government has issued a regulation stating that the vaccine
production procedure must be granted as a country’s mandatory license for
other countries. PPP is a relative concern in this situation and represents the
triangle of public health, patent, and pandemic. The controller’s authority
concerning the mandatory license is discussed in Section 88. The controller
must look at the nature of the invention and determine whether it has the
ability to file an application.

Landmark case laws surrounding

patents

Novatris Ag v. Union of India (2013)

This is one of the most significant cases that deals with Section 3(d). In
this case, the Supreme Court denied Novartis’ request for a patent on its anti-
cancer medication Glivec. Novartis is a Swiss pharmaceutical corporation.
Chronic Myeloid Leukemia is treated with Glivec. The patent office had
rejected Novartis’ claim on the grounds that it was in conflict with Section
3(d) of the Indian Patents Act and that the medication did not demonstrate
any known therapeutic efficiency over its prior form. The firm disputed this,
and the matter was ultimately debated before the supreme court. The Court
was required to think about the following:

1. Is the invention covered by Section 3(d)?

2. What does Section 3(d) mean?
Glivec was not a completely new material, according to the Supreme Court,
but rather a new version of the drug. As a result, it did not pass the Section 3
test (d). The section lists increased effectiveness as a precondition, but this
need was not met. Novartis made an effort to counter this, but in vain.
According to the court, a drug’s efficacy in the context of pharmaceuticals
refers to therapeutic efficacy; just because certain patients benefited from it
does not imply that it met this requirement. The Court further stated that in
order to preserve the lives of the general public, stricter conditions must be
implemented when issuing patents for life-saving medications. The final
outcome must be avoided at all costs.

Cipla Ltd. v. F.Hoffmann-La Roche Ltd. and

Anr. (2015)
Hoffman, which is a multinational healthcare Swiss company, initiated a
lawsuit against Cipla Ltd, which is India based pharmaceutical company. The
issue arose in the Delhi High Court regarding the Roche medicine “Erlotinib,”
which Roche marketed as TARCEVA. Erlotinib Hydrochloride is the substance
that serves as the foundation for both Roche and Cipla. After claiming to have
received a patent for “Erlotinib,” Roche began marketing the medication as
TARCEVA in February 2007. It was revealed in January 2008 that Cipla
intended to introduce a generic form of “Erlotinib.” This prompted Roche to
file an infringement claim against Cipla. In the end, Roche was awarded a
favorable verdict. The judgment clearly outlined the rules that apply to
several important components of a patent infringement. Cipla was ordered to
account for the production and sale of Erlocip, and Roche was awarded costs
in the amount of Rs. 5, 00,000.

Diamond v. Chakrabarty (1980)

The focus of this case is microbes, particularly genetically modified
microorganisms. A process patent was requested. The method, end result,
and constituent parts were all claimed as patentable. It was questioned if
bacteria could be patented because they are living organisms. Only
microorganisms found in living things are patentable. The Supreme Court
also opined that anything manufactured by man, including human-made
creatures, is a subject matter for patentability.

Dhanpath Seth and Ors. Nil Kamal Plastic

Crates Ltd. (2007)
As bamboo can be used for manual cultivation and is lightweight, Dhanpath
created a Kilta-like gadget. Neel Kamal Plastic then began utilizing it without
paying royalties to Dhanpath, preserving the ancient expertise. Dhanpath
claimed that they first began using the basket because the traditional Kilta
was so unpleasant and burdensome to use. Does Dhanpath Seth have a
patent that is legitimate? The injunction was the case’s first issue, followed
by the infringement. The Court ruled that bamboo baskets do not satisfy the
novelty requirement and the section requiring customary knowledge. It was
merely a copy of Kilta, the usefulness was not demonstrated, there was no
originality, and the property was reiterated.

Conclusion
The Indian Patent Office has taken the required steps over the past two years
to facilitate unfettered access to information about application status and
granted patents. It is requisite All patented inventions must meet the
requirements for patentability. When it comes to the investment made in the
development of new technology, patents can offer both individuals and
businesses significant value and higher profits.
PCT
The Patent Cooperation Treaty (PCT) provides us with an overview of an
international treaty which is duly administered by the World Intellectual
Property Organization (WIPO). The Patent Cooperation Treaty (PCT) is an
international treaty with more than 148 Contracting States. It is administered
by the World Intellectual Property Organization.(WIPO).The PCT is an
international treaty which provides a system for filing a patent application
and allow us to obtain patents in multiple countries around the world on the
basis of a single patent application. As PCT simplifies the procedure for
obtaining Patent protection in many countries, making it more efficient and
economical for: a) Users of the patent system i.e an applicant/(s) and
inventors b) National Offices. The PCT simplifies the patent filing process for
applicant and the ultimate decision to grant a patent vests exclusively with
each national or regional Patent Office. A single PCT application has the same
legal effect as a national Patent application in each of the PCT Contracting
States. Without the PCT, we would have to file a separate patent application
in each country separately and independently. PCT save applicant time,
effort and expense of preparing separate applications in various languages
and file it in different signatories states. Patent Cooperation Treaty- file an
application under the PCT, directly or within the 12-month period as provided
for by the Paris Convention from the filing date of a first application, which is
valid in all Contracting States of the PCT.

Need for Introducing PCT

PCT PROVIDES USERS WITH A

WORLDWIDE SYSTEM FOR THE
SIMPLIFIED AND EFFECTIVE FILING
OF PATENT APPLICATIONS,
 To bring the world within reach.
 Removes major costs and provides users with additional time to
consider their various Patent granting options.
 Provides a strong basis to the user for Patenting decisions.
 Is effectively used by the world’s major corporations, universities
and research institutions when they seek international patent
protection.
Basic Features of PCT System
1. Formal examination done by one office.
2. Retrieval is carried out by one office.
3. International publication done by one office.
4. Examination and authorization finished by national office.
5. Single application with legal effect in all PCT countries.
6. 148 countries and 4 regional patent systems.

PCT Advantages

THE PCT, AS AN AID OF THE

INTERNATIONAL PATENT SYSTEM,
PROVIDES A WORLDWIDE SYSTEM
FOR SIMPLIFIED FILING AND
PROCESSING OF PATENT
APPLICATIONS WHICH HELPS IN,
 A single application in single language filed in a single country called
the international application.
 Provides a strong basis for patenting decisions to the users.
 Harmonizes formal requirements.
 Used by the world’s major corporations, universities and research
institutions when they seek international patent protection.
 This single application has the effect of filing simultaneously in
different countries (designated countries).
 Protects applicant from certain inadvertent errors.
 Evolves to meet user needs.

PCT Filing Process

STEP 1 – Filing of Local application

First applicant need to file patent application in home country.

STEP – 2 Filing of PCT application

Applicant need to file a national application along with international
application in one language and need to pay single set of fee. PCT application
is to be filed within 12 months after filing a national application. Priority date
is given by the national office.

PCT application can also be directly filed to RO (receiving office) office of

WIPO.

STEP – 3 Checking for Defects

The check is conducted by the receiving office, it is divided into two parts.
The first part concerns the requirements of according an international filing
date as set out in Article 11(1) of PCT. The second part concerns the formal
and physical requirements under Article 14.

STEP – 4 International Search Report

Application is transmitted to an International searching authority. An
International Searching Authority search an application and check for a prior
art and state of art. They made it clear whether or not document that have
been presented is eligible for grant of patent. They establish it on the basis of
their written opinion. Within 16 months from the date of filing, ISR
(International search report) will give search report with written opinion.

{ Prior art: everything which has been made available to the public
anywhere in the world by means of written document which is capable of
being of providing assistance in determining that the claimed invention is
new or not and also that it does or does not involve an inventive step.}

STEP 5 International Publication

After submitting the necessary document user application is published, after
the completion of 18 months. Before that an application is kept secret.
International Bureau (IB) of WIPO publishes the PCT application. Content of
application is disclosed to the general public.

STEP – 6 International search

Request for supplementary search is filed by the application before
completion of 19 months from the priority date. Under this applicant
demand for international preliminary examination.

STEP – 7 International Preliminary Report

Search authority will give report on patentability, whether or not patent is to
be granted. This is to be given within 28 months by the competent
authority.

STEP – 8 Enter in National Phase

After completion of all necessary requirements patent is granted by national
office and likewise patent is granted in all other contracting states. Patent is
granted to the applicant before the completion of 30 months .After this
applicant can seek protection.

Comparison between PARIS Convention &

PCT

e-PCT
Apart from giving application in papers WIPO has evolved new concept of
filing of an e-PCT which is easier for both applicant and patent office.

 Online e-filing portal that provides PCT services for applicants and
office both.
 It was made available since May, 2011.
 It provides secure and direct interaction with PCT applications
maintained by the International Bureau.
 Applicants can now easily conduct most PCT transactions
electronically mode.

PCT Challenges
1. Improving the quality of PCT international phase work products.
2. Building trust between Patent offices, so that duplication of
application in international phase and national phase processing can
be reduced.
3. Language issues faced by most countries:
 Helping developing countries benefit from the PCT.
 Making PCT accessible to applicants of all types from all Contracting
States.

4. Helping PCT users stay abreast of new developments and strategies