Patent Law – Salient Features and Upgradation

Author : Sonu Arvind Chaturvedi

Overview of Law:

Patent is one of the element of Intellectual Property Rights (IPR) for unique inventions in order to safeguard them from piracy.

What is an Invention?

Section 2(1) (j) of The Patent Act, 1970 (hereinafter referred as Act) “Invention” is defined as “a new product or process involving an inventive step and capable of industrial application.”

Features of Patent Act (Quick gist):

• Not only Product but also Process can be patented under act.
• Invention shall be useful, novel and something which is not obvious.
• Shall be capable of getting used in Industry, if not then it may amounts to revocation of patent.
• Invention shall be new and shall not form part of Section 3 and 4, which provide for exceptions of ideas which cannot be patented.
• Term of patent – 20 years (can be renewed) (in some case it may also be upto 7 years)
• Patent Examination can be conducted on request.
• Both pre-grant and post-grant opposition is enabled.
• Fast track mechanism shall prevail for disposal of appeals if any disparity exists.
• Values to protect integrity of Indian Constitution’s various clause such as Article 51-A of fundamental Duties is also taken into consideration by nurturing and keeping nature and rich heritage of culture in mind. Hence Provision for protection of bio-diversity and traditional knowledge is specified in act.
• Publication of applications after Eighteen months with facility for early publication enable getting patented rights as if it was registered from day if reasonableness of time is observed.

Following conditions are those where patent can either not be granted at first place or get revoked later on for public interest.

• Compulsory license can be granted to seller of pharmacy to ensure availability of drugs at reasonable prices to citizens.
• Current ruling government can invoke necessary provisions to deal with public health emergency. One of its best instance can be seen in current scenario in the year of 2020 where coronavirus outbreak have alarmed pandemics and invention of vaccine (awaited by world) will come out in market at affordable price and all such rights to control prices vest with government.
• Revocation of existing patent is allowed if it’s in public interest and also on security considerations it can be revoked.
• Any kind of fraudulent or intention of piracy will not be entertained.

This Act is further supplemented by The Patent Rule, 2003 and several Amendments were made time to time and some of the major amendments were undertaken in Year 2005, 2013, 2018 and latest in 2019.  Apart from that constant efforts are taken for harmonious construction along with various Treaties and international patent law.  But still some prevalent issues exist hence let us go-through them once.

TRIPS Agreement is signed by several nations for further protection of patentee’s right on international level. It was signed in WTO meeting of day one of January, 1995. TRIPS stand for Trade Related Aspect of Intellectual Property Rights. India too is one of the dignified signatory to TRIPS agreements.
Article 27 of TRIPS is boon to all patentee irrespective of nation, region which imply that it shall be free from any sort of discriminations and shall have all the qualitied mentioned in the beginning of the article regards to Features of Patent.
Though patent Act is one of the beloved act for original inventor of Ideas and Product but scope of improvement is never ending subject, there is always room for improvement hence let us see current and emerging issues of this law at glance which need major upgradations:

Inter alia here I present some suggestive measure.

Section 3 of the Act:

Section 3 of the act sites exceptions, in other words section 3 provide for provisions which states that what cannot be patented. According to Section 3 sub clause ‘d’ and sub clause ‘k’  whereby section 3(d) deals with applications related to pharmaceuticals and section 3(k) deals with application related to Computer related technology respectively.
You can read about provisions given in section on link provided in foot note here let us highlight on the amendments needed.

Time and technology have changed dynamically and hence the way of producing them hence the scope of section shall be looked over and review with due respect given to protection of Plants, Animal and no adverse effect on environment being triggered. Algorithms in computer programme and mere discovery of new substance is not patentable but now this need to be considered in rarest case looking at the current scenario. Talking again about Coronavirus outbreak, I would like to highlight the facts that this virus is something so new and deadly that none of us was prepared to fight with this but there may be an instance of certain discoveries of substance which may get patented to encourage inventors to do new discoveries hence exceptions too need further exceptions whereby one’s invention may be falling in purview  of section 3 but if satisfy certain criteria and stand out to be unique and useful then it shall get patent tag same goes to computers algorithm and by including such exceptions to exception will encourage new discoveries and boost start-up businesses but at no point it shall be used by patentee against public at large in a way to exploit them or environment. On such misuse Patent attorneys shall take necessary steps to revoke such registered patent in default.

Section 8 of the Act:

Section 8 subsection 1 of the act provide for voluntary submission in Form 3 regards to corresponding foreign applications and Section 8 subsection 2 provided for periodical submission of publicly available information to Indian Patent Officer (IPO). And on top of that if there is delay in submission then it became troublesome. This clause was written when digitalization was not at its pace. But now it is highly possible to get it done through online portal in safe and secured way.

Form 27 of Act:

This is one of the unique feature of Indian Patent Act. This Form deals with Working Statement and Section 146 subsection 2 make all Patentee accountable for filing working statement on yearly basis, which is burdensome as this add unnecessary additional cost and load on Patentee.
How?
This form is so prolonged hence to fill all required field in this form is bit impossible as today’s time is of digitization hence New Draft is formed to change the pattern of form but the proposed draft still can get simplified (You can read more about Proposed Draft of Form 27 on google) specially in era of 2020 where even Tax Laws are simplified and made faceless. And another important point is that there shall be safeguard of business related sensitive information provided by Patentee.

Section 59 of Act:

This Section specifically talks about Amendments in patent Laws (You can read about provision in link given in footnote). In India where even amendments in Constitution Of India are welcomed, reflects that our laws are always welcoming necessary alterations but patent law provides for rigid provisions for amendment in Act, hence this is the main reasons that why so many proposed changes are still not applicable.  Hence this too need to get relaxed as current provisions only provide to limited scope for amendments.

Delay in prosecutions:

No doubt that delay in prosecution is mostly talked about concern in India. Similarly in Patent Act there are many pending precautions and pending appeals lies before Indian Patent Officer (IPO). Hence speedy disposal of matters is alarming concern asking for changes in procedure which shall be simplified. 

“Simplification is necessary for more and maximum compliance of law”

Do you know?

Memes are something one cannot avoid being on Social Medias and hence there are some wired confusions of law which Intellectual Property Act, 2000 shall solve confusions.

Memes and IPR?

Question 1: Can memes get copyright or Patent or Trademark?
Probably it cannot be covered in Trademark for sure as there is meme community of ‘Doge Memes’ they tried for getting trademark but their application got rejected.

Answer – Probably either be in copyright (available for originator of artistic work) or Patent (available to inventors for inventions). Some claim of unauthorized sources says that memes comes under patent law, but law does not provide any specifications. Hence it’s high time for IPR Act to provide clarifications.

Is making mask an inventive step?

Question 2 – In the year 2015, A man from US Christopher Harrington tried to get patent for ‘CV19-N95’ Mask and similar rumours were found that ‘Bills Gates’ tried to get patent for ‘N95 Mask’ and both this rumours got viral saying that patent applications got rejected.

Answer – Point is that in all confusion law shall make clear and bold rules. As there are lots of conspiracy regarding source of this fact.

Fact Display:

Year 1891 and correct side of Toilet Paper?

In the Year 1891 in one of the foreign country it was held that hanging toilet paper too have a right way to hung and that step was patented. It is 129 year age old debate which got solved in the year 2015 and it was stated that right way to hung between ‘over and under’ is hanging towards over. (You can google it to check it pictorial representation)

Sum it up:

The one who doesn’t change with time fails, similarly when law does not have required amendments it fails too hence for stronger regulation right and steady law it important. Too many amendments or too much of rigidity is problematic. Hence stable law is always preferable all-over the world.

Foot Note: 

Here is a link to Bare Act’s pdf for your reference – http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf   (If link doesn’t work, please type mentioned URL manually in Search Engine’s Search Bar)