Meaning of Intellectual Property

Intellectual Property (IP) refers to creations of the mind for

which exclusive legal rights are recognized. These creations can
be inventions, literary and artistic works, designs, symbols,
names, and images used in commerce. Intellectual Property is
protected by law through patents, copyrights, trademarks, and
other mechanisms, enabling creators or owners to earn
recognition or financial benefits from what they invent or create.
In simple terms, Intellectual Property is a category of property
that includes intangible creations of the human intellect. Just like
physical property such as land or a house, intellectual property
can be owned, transferred, sold, or licensed.
Types of Intellectual Property:
1. Patent – Protects inventions or discoveries.
2. Copyright – Protects original literary, artistic, and musical
works.
3. Trademark – Protects symbols, logos, words, or phrases
that distinguish goods or services.
4. Trade Secrets – Protects confidential business information.
5. Industrial Design Rights – Protects the visual design of
objects.
Purpose of Intellectual Property:
 To encourage innovation and creativity.
 To protect the rights of creators and inventors.
 To promote fair competition in the market.
 To enhance economic development by rewarding
innovation.
 The Patent Act,1970

1. Introduction
The Patent Act, 1970 is the key legislation in India that governs
the law relating to patents. Enacted on 19th September 1970 and
brought into force on 20th April 1972, this Act replaced the
previous Indian Patents and Designs Act of 1911. The Act was
formulated to suit the socio-economic and technological needs of
the country and to promote innovation in Indian industries by
providing them with an exclusive right over their inventions.
Over the years, this Act has been amended several times, most
significantly in 1999, 2002, and 2005, to comply with India's
obligations under the World Trade Organization (WTO) and
TRIPS (Trade-Related Aspects of Intellectual Property
Rights) Agreement.

2. Aim of the Patent Act, 1970

The main aim of the Patent Act, 1970 is:
 To encourage scientific and technological innovation by
granting inventors exclusive rights to their inventions.
 To balance public interest and private rights by preventing
the abuse of patent rights.
 To facilitate industrial growth and enhance competitiveness
in the Indian market.
 To bring Indian patent law in line with international
standards, especially after India became a signatory to
TRIPS.
3. Objectives of the Patent Act, 1970
The key objectives of the Patent Act are:
1. To protect inventions that are novel, involve an inventive
step, and are industrially applicable.
2. To encourage inventors by giving them legal recognition
and exclusive rights to exploit their inventions for a limited
period (generally 20 years).
3. To prevent monopolies by excluding certain categories (like
abstract theories, traditional knowledge, natural discoveries)
from patentability.
4. To promote research and development by creating a legal
framework that motivates individuals and corporations to
invest in innovation.
5. To fulfill international obligations, especially after India’s
accession to TRIPS under the WTO.
6. To ensure accessibility of essential inventions (like life-
saving medicines) through mechanisms like compulsory
licensing.

5. Fundamental Principles of the Patent Act, 1970

The following core principles govern the working of the Patent
Act:
a. Territoriality
 A patent granted in India is enforceable only within the
territory of India.
b. Public Interest
 The law ensures a balance between the interests of patent
holders and the needs of the public.
 For instance, lifesaving drugs can be licensed to other
manufacturers if the original patent holder does not make
them accessible.
c. Limited Monopoly
 A patent grants exclusive rights only for a limited period (20
years), after which the invention becomes public property.
d. Disclosure
 The inventor is required to fully disclose the invention to the
public in the patent specification, enabling others to use the
knowledge once the patent expires.
e. Encouragement of Innovation
 The Act seeks to encourage creativity and innovation by
protecting inventors’ rights and ensuring a return on their
investment.
f. Safeguards against Abuse
 Through provisions like compulsory licensing, opposition
proceedings, and revocation, the Act provides checks
against abuse of patent rights.
On the other hand, Section 2(1)(I) of the Act, 1970 defines the term 'new invention'.
It has two elements:
1. Any invention or technology which has not been anticipated or expected by a
publication. In other words, the subject matter of the patent must not be available in
the public domain or form a part of the state of the art.
2. Any invention or technology which has not been used before the filing of a patent
application anywhere in the world.
Section Not Patentable Invention
3(a) Frivolous or contrary to natural laws
3(b) Contrary to public order or morality
3(c) Discovery of scientific principle or natural substance
New form of known substance without enhanced
3(d)
efficacy
3(e) Mere admixture
3(f) Mere arrangement or duplication
3(h) Agriculture or horticulture methods
3(i) Medical/surgical/treatment methods
3(j) Plants, animals, biological processes
Mathematical methods, business methods, computer
3(k)
programs per se
3(l) Artistic or literary works
3(m) Methods of playing games, mental acts
3(n) Presentations of information
3(o) Integrated circuit topographies
3(p) Traditional knowledge
4 Inventions related to atomic energy
⬤ Section 3 – What are not inventions

According to Section 3 of the Patents Act, 1970, the following are not considered inventions
and therefore not patentable in India:

1. Section 3(a) – An invention which is frivolous or claims anything obviously contrary to

well-established natural laws.
2. Section 3(b) – An invention the primary use or commercial exploitation of which could
be contrary to public order or morality, or which causes serious prejudice to human,
animal, plant life, health, or the environment.
3. Section 3(c) – The mere discovery of a scientific principle or the formulation of an
abstract theory, or discovery of any living thing or non-living substance occurring in
nature.
4. Section 3(d) – The mere discovery of a new form of a known substance which does
not result in the enhancement of the known efficacy of that substance. (Important in
pharmaceutical patents)
5. Section 3(e) – A substance obtained by a mere admixture resulting only in the
aggregation of the properties of the components.
6. Section 3(f) – The mere arrangement or re-arrangement or duplication of known
devices each functioning independently in a known way.
7. Section 3(h) – A method of agriculture or horticulture.
8. Section 3(i) – Any process for the medicinal, surgical, curative, prophylactic or other
treatment of human beings or animals to render them free of disease or to increase
their economic value or that of their products.
9. Section 3(j) – Plants and animals in whole or any part thereof (other than micro-
organisms), including seeds, varieties, and species and essentially biological processes
for production or propagation of plants and animals.
10.Section 3(k) – A mathematical or business method or a computer program per se or
algorithms.
11.Section 3(l) – A literary, dramatic, musical or artistic work or any other aesthetic
creation including cinematographic works and television productions.
12.Section 3(m) – A mere scheme or rule or method of performing mental act or method
of playing games.
13.Section 3(n) – A presentation of information.
14.Section 3(o) – Topography of integrated circuits.
15.Section 3(p) – An invention which in effect is traditional knowledge or which is an
aggregation or duplication of known properties of traditionally known components.

⬤ Section 4 – Inventions relating to atomic energy

 No patent shall be granted for any invention which is useful for or related to the
production or use of atomic energy and is covered under Section 20(1) of the Atomic
Energy Act, 1962.
🔹 Section 6 – Persons entitled to apply for patents

Who can apply for a patent?

According to Section 6(1) of the Patents Act, the following persons are entitled to apply for
a patent:
1. True and first inventor of the invention (except where he has obtained it from another
person).
2. Assignee of the person claiming to be the true and first inventor.
3. Legal representative of a deceased person who, before death, was entitled to make
such an application.
Explanation:
 A company or an individual can apply for a patent if they are the rightful creator or
have legally obtained the rights from the inventor.
 A foreign applicant can also file in India, subject to Indian patent rules.

🔹 Section 7 – Form of application

How should the patent application be made?

According to Section 7, the key provisions regarding the form and contents of a patent
application are:
1. Written form: The application must be made in Form 1 (as per Patent Rules) and filed
in writing with the Indian Patent Office.
2. Application types:
o A patent application may be for a single invention or a group of inventions that
are linked to form a single inventive concept.
o The application must be accompanied by a provisional or complete
specification (Form 2).
3. Foreign applications:
o If the applicant has filed a patent for the same invention in any other country,
they must disclose the details of such foreign applications under Section 8.
4. Place of filing: The application is to be filed at the appropriate Patent Office, depending
on the applicant’s address or origin of the invention.

🔹 Section 8 – Information and undertaking regarding foreign applications

Disclosure of foreign patent applications

Section 8 ensures transparency and disclosure when an applicant has filed patent
applications abroad.
Section 8(1):
The applicant must:
 Disclose details (name of country, date, application number, and status) of any foreign
patent applications filed in respect of the same or substantially the same invention.
  Provide this information within six months from the date of filing the application in
India.
Section 8(2):
The Controller of Patents may, at any time during the prosecution of the Indian patent
application:
 Require the applicant to furnish details of processing of the foreign applications, such
as search and examination reports.
 The applicant must comply within the prescribed time, usually 6 months.
Non-compliance with Section 8 can lead to refusal or even revocation of the patent (as seen
in certain case laws like Chemtura Corporation v. Union of India).

Section Subject Key Points

Who can apply: inventor, assignee, or
6 Entitlement
legal representative
Written form, complete/provisional
7 Form of Application
specification, single inventive concept
Disclosure of Foreign Must disclose foreign filings; failure can
8
Applications lead to refusal/revocation

🔹 Section 9 – Provisional and Complete Specifications (Summary)

 Allows filing a provisional specification when the invention is not fully developed.
 The complete specification must be filed within 12 months of the provisional;
otherwise, the application is deemed abandoned.
 Once a complete specification is filed, it cannot be converted into a provisional.
 Applications can be post-dated (maximum of 6 months), but the 12-month limit still
applies from the original date.

S.
Provision Description
No.
Filed when the invention is not fully developed; helps secure an
1⃣ Provisional Specification (Sec 9(1))
early priority date.
Must be filed within 12 months from the date of provisional
2⃣ Time Limit for Complete Specification
filing; else, the application is abandoned.
An application filed with a complete specification cannot be
3⃣ No Conversion (Sec 9(2))
converted into a provisional one.
Applications may be post-dated (up to 6 months); however,
4⃣ Post-dating (Sec 9(3)) the 12-month period for filing a complete specification is
counted from the original date.
🔹 Section 10 – Contents of Specifications (Summary)

 Specifies what must be included in provisional and complete specifications.

 Provisional must describe the invention, no need for claims.
 Complete specification must include: title, field of invention, background, detailed
description, claims, drawings (if any), and an abstract.
 All specifications must be clear, enabling, and support the scope of claims.
 Claims must be on a separate page, concise, and properly supported.

S.
Component Description
No.
Clearly indicates the subject matter of the
1⃣ Title of the Invention
invention.
Defines the technical area to which the invention
2⃣ Field of the Invention
relates.
Background of the Describes prior art, existing problems, and gaps
3⃣
Invention in current technology.
Summary of the Briefly explains how the invention works and
4⃣
Invention what problem it solves.
Complete, enabling disclosure of the invention;
5⃣ Detailed Description
includes examples and embodiments.
Visual representations, labelled and referred to
6⃣ Drawings (if any)
in the description.
Define the legal scope of protection; must be
7⃣ Claims
clear, concise, and supported by the description.
A concise summary (approx. 150 words) for
8⃣ Abstract
quick understanding and publication.

Section 25 – Opposition to Grant of Patent

Section 25 provides two types of opposition mechanisms:

🔹 1. Pre-Grant Opposition – Section 25(1)

🔹 2. Post-Grant Opposition – Section 25(2)

✅ 1. Pre-Grant Opposition – Section 25(1)
 Who can file: Any person can file a pre-grant opposition.
 When: After the application is published but before the grant of a
patent.
 How: File a representation in writing to the Controller against the
grant.

📌 Grounds for Pre-Grant Opposition (Section 25(1)(a) to (k)):

Clause Ground
(a) Wrongful obtaining of the invention.
(b) Prior publication of the invention in India or elsewhere.
(c) The invention has been claimed in a prior application.
The invention was publicly known or used in India before the
(d)
priority date.
(e) The invention is obvious or lacks inventive step.
(f) The invention is not an invention under the Act.
(g) The invention is not patentable under the Act.
The complete specification does not sufficiently describe the
(h)
invention.
(i) Non-disclosure of required information under Section 8.
(j) Information materially false to the Controller.
Failure to disclose or wrongful mention of biological material
(k)
source and origin.

🔍Outcome:
If the Controller finds merit in the opposition, the application may be
refused or amended before grant.
✅ 2. Post-Grant Opposition – Section 25(2)
 Who can file: Any interested person (e.g., competitors, affected
parties).
 When: Within 12 months from the date of grant and publication
of the grant in the official journal.

📌 Grounds for Post-Grant Opposition (Same as above):

Post-grant opposition can be filed on exactly the same grounds as listed
in Section 25(1)(a) to (k).

🔍 Procedure:

 Filed before the Opposition Board.

 The Board hears both parties and submits a report to the
Controller, who then decides the matter.

🔍 Outcome:

 The patent may be revoked, amended, or maintained based on the

Controller’s decision.

✅ Key Differences Between Pre-Grant and Post-Grant Opposition

Aspect Pre-Grant (Sec 25(1)) Post-Grant (Sec 25(2))

Who can
Any person Only interested person
file

After publication, before

Timing Within 12 months of grant
grant

Forum Controller Opposition Board + Controller

May revoke/amend granted

Effect May delay or block grant
patent
 Section 43 – Grant and Sealing of Patent
What happens under Section 43?
1. Grant of Patent:
o After the patent application passes all examinations and oppositions (if
any), the Controller of Patents grants the patent.
o The grant is formally communicated to the applicant through a patent
certificate.
2. Sealing of Patent:
o Along with the grant, the patent is sealed by the Controller.
o The seal is an official mark certifying that the patent is now legally
recognized.
o The sealed patent document is then entered in the register of patents
maintained by the patent office.
3. Publication:
o Once granted and sealed, the patent details are published in the
Official Patent Journal.
o This publication notifies the public about the patent rights granted.

Key Points:
 The patent is effective only after grant and sealing.
 The rights of the patent holder start from the date of grant.
 The sealed patent serves as legal proof of the invention’s protection.

📌 Section 47 – Conditions for Grant of Patent (Summary)

1. ✅ Government can use the patented invention for its own
purposes without the patentee’s permission.
2. 🏥 Medicines or drugs can be imported by the government for
use in government hospitals and medical institutions.
3. 📚 Patented inventions can be used for research, teaching, and
experiments without it being a patent infringement.
4. 🚛 Government can manufacture/import patented products for
public medical use.
📌 Section 48 – Rights of Patentee (Summary)

🔒 Grants exclusive rights to the patentee to:

1. ✅ For a product patent:

o Make, use, sell, offer for sale, or import the patented product
in India.
2. 🛠 For a process patent:
o Use the process, and
o Make, use, sell, offer for sale, or import the product obtained
directly by that process in India.

💡 In short: Section 48 gives the legal right to stop others from using
the patented invention without consent.

📌 Section 53 – Term and Expiry of Patent (Summary)

🕒 1. Term of Patent:
 A patent is granted for a term of 20 years from the date of filing of the

application.
🗓 2. For National Phase Applications (PCT):
 The 20-year term is calculated from the international filing date.

💸 3. Lapse of Patent:
 If the renewal (annual) fees are not paid, the patent lapses.

 The patent can be restored if the patentee applies within the prescribed

time and gives a valid reason.

⛔ 4. Expiry of Patent:
 After 20 years, the patent expires and the invention enters the public

domain, meaning anyone can use it freely.

💡 In short: Section 53 defines the lifespan of a patent as 20 years, and outlines

how it can expire or lapse if fees are not paid.
📘 Section 54 – Patents of Addition (Summary)
🔹 What is it?
A Patent of Addition is granted for an improvement or modification of
an already patented invention by the same applicant.
✅ Key Points:
 No separate renewal fee required (as long as the main patent is
valid).
 It expires with the main patent.
 Can be converted to a regular patent if the main patent is revoked.
💡 Purpose: Encourages innovators to improve their inventions without
applying for a new patent.

📘 Section 55 – Rights of Patentee of Addition (Summary)

🔐 what rights are granted?
 The patentee of addition has the same rights as the main patent
holder.
 However, the rights are enforceable only if the main patent is in
force.
 If the main patent lapses or is revoked, the patent of addition may
become an independent patent, if requested.
💡 Purpose: Ensures that improvements to an invention are legally
protected alongside the main invention.
SURRENDER AND REVOCATION (SEC 63-66)
📘 Section 63 – Surrender of Patent (Summary)
🔹 A patentee can voluntarily surrender a patent by giving written
notice to the Controller.

🔍 Before accepting surrender, the Controller:

 Publishes the notice.

 Allows interested persons to oppose the surrender.

💡 Purpose: Enables the patentee to give up the patent, possibly due to

commercial or legal reasons.

📘 Section 64 – Revocation of Patent by Controller or High Court

(Summary)
🔹 A patent can be revoked by the Controller or High Court on petition
by:

 Any interested person, or

 The Central Government.

🛑 Grounds for Revocation include:

 Invention not new, obvious, or not patentable.
 Patent obtained by fraud or misrepresentation.
 Non-disclosure of required information.
 Failure to comply with patent rules or pay fees.
 Invention was secretly used before the filing.
 Public mischief or morality concerns, etc.

💡 Purpose: To prevent wrongful or undeserving patents from being

enforced.
📘 Section 65 – Revocation for Security of India (Summary)
🔹 The Central Government may request revocation of a patent if it is
prejudicial to the interests of national security.

 The High Court can revoke such a patent on this ground.

💡 Purpose: Protects national safety and defense interests.

📘 Section 66 – Revocation in Public Interest (Summary)

🔹 if the Central Government believes a patent is mischievous to the
public or prejudicial to the state, it may revoke it by notification in the
Official Gazette.

💡 Purpose: Safeguards the public interest and welfare from harmful

or unethical patents.

Section Title Summary

The patentee can voluntarily surrender a patent.

Surrender of
63 The Controller publishes the notice and allows
Patent
opposition from interested parties.

A patent can be revoked on petition by an

Revocation by
interested person or the Central Government for
64 Controller or
various legal and technical defects (e.g., fraud, prior
Court
knowledge, non-patentability, etc.).

The High Court may revoke a patent if the Central

Revocation for
65 Government believes it is prejudicial to national
Security of India
security.

The Central Government can revoke a patent by

Revocation in
66 notification if it is mischievous to the public or
Public Interest
harmful to the State.
📘 Section 73 – Controller and Other Officers (Summary)

🔹 this section defines the structure of the Patent Office and the appointment of
officers.

Provision Details

⚖ Controller The Central Government appoints a Controller General of

General Patents, Designs, and Trademarks to supervise all operations.

👨💼 Other Includes Controllers, Examiners, and other staff to assist in

Officers patent administration.

The Patent Office is headquartered in Kolkata, with branches in

📍 Headquarters
Delhi, Mumbai, and Chennai.

Officers have powers as assigned under the Act and work under
⚖ Powers
the supervision of the Controller General.

📘 Section 74 – Patent Office as a Government Department (Summary)

🔹 Declares that the Patent Office is a department of the Central Government.

Key Point Explanation

🏢 Status The Patent Office functions as an official government department.

📝 Legal It has legal backing to perform all duties and exercise powers under
Identity the Patents Act.

✅ In short:

 Section 73 lays down the administrative setup and officers of the Patent
Office.
 Section 74 officially designates it as a Central Government department.
 📘 Section 84 – Compulsory Licences (Summary)
🔹 What is it?
Section 84 allows any person (even a third party) to apply for a
compulsory licence to use a patented invention without the patentee’s
consent, under certain conditions.

✅ When can a compulsory licence be granted?

After 3 years from the grant of the patent, a person can apply for a licence
on any of these grounds:
Ground Explanation
1⃣ Reasonable public The patented invention is not available to
requirements not satisfied the public in sufficient quantity or quality.
2⃣ Not available at a The product is too costly, making it
reasonable price unaffordable to the general public.
The invention is not manufactured or
3⃣ Not worked in India
used in India to a reasonable extent.

🏛 Who decides?
 The Controller General decides whether to grant the licence after hearing
both parties.

📌 Licensee Rights:
 The compulsory licence holder can produce, sell, or use the invention
under terms set by the Controller.
 The patentee still retains ownership, but must allow limited use under
conditions.

💡 In short:
Section 84 ensures public access to essential inventions (like medicines or
technologies) when the patentee fails to meet public needs.
📘 Sections 99–103 – Government Use of Patents
(Summary)

Section Title Summary

Includes use by the government or its

Meaning of "Use for
authorized persons for any official, non-
99 Government
commercial purpose (like public health, safety,
Purposes"
defense, etc.).

The Central Government can use any patented

Power of Central
invention for public interest purposes without
100 Government to Use
the patentee’s consent, but must inform the
Invention
patentee.

If a third party is authorized by the government

Right of Third
to use the patent, they must follow the terms
101 Parties in
set by the Controller and may be liable to
Government Use
compensate the patentee.

The patentee is entitled to reasonable

Payment of Royalty
102 compensation/royalty for government use, as
or Compensation
decided by the Controller.

If the patentee and the government/authorized

Procedure for
103 party disagree on compensation, the matter is
Disputes
referred to the High Court for resolution.

✅ In Short:
Sections 99–103 empower the government to use patented inventions
for public purposes, while also ensuring the patentee is fairly
compensated and disputes are resolved legally.
 ⚖ Patent Infringement (Summary)
🔹 What is Patent Infringement?
Patent infringement occurs when someone uses, makes,
sells, offers for sale, or imports a patented invention without
the permission of the patentee during the patent's term.
✅ Types of Infringement:
Type Description

Direct Unauthorized making, using, selling, or

Infringement importing of a patented product or process.

Encouraging or helping others to infringe

Indirect
a patent (e.g., supplying parts for patented
Infringement
inventions).

🏛 Remedies for Infringement (Under Section 108):

 Injunction (to stop the infringing act)
 Damages or account of profits
 Seizure or destruction of infringing goods

❌ Not Infringement if:

 The use falls under Section 47 (government use, research,
teaching).
 It’s done after the patent expires.
 It is for experimental or educational purposes.
 💼 Patent Agent (Summary)
🔹 Who is a Patent Agent?
A Patent Agent is a qualified professional registered under
the Patents Act, 1970, who is authorized to:
 File patent applications
 Communicate with the Patent Office
 Draft specifications and other documents
 Represent clients before the Indian Patent Office

✅ Eligibility to Become a Patent Agent (Under Section

126):
Criteria Details

Citizenship Must be an Indian citizen.

Age At least 21 years old.

Must have a science, engineering, or

Qualification
technology degree.

Must pass the Patent Agent

Exam Examination conducted by the Indian Patent
Office.

Must register with the Controller

Registration
General of Patents, Designs & Trademarks.
 🔐 Duties of a Patent Agent:
 Help inventors protect their innovations.
 Ensure compliance with patent laws and procedures.
 Provide legal and technical guidance in patent matters.