Patent Evolution
Patent Evolution
Patent Evolution
2.1 Introduction
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History and evolution of patent law – international & national perspectives
Karnika seth, attorney at law & partner, seth associates
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. A Detailed Study of Patent System for Protection of Inventions
G. Krishna Tulasi and B. Subba Rao*
1600 with Queen Elizabeth I’s chartering of the “Governor and
Company of Merchants of London trading into the East Indies,”
The English East India Company (“The Company”), which first came
to India in 1608 and laid the foundation for British rule over the
next three decades. The British Crown was eventually forced to
take full control of India from the Company in 1858 as a result of a
massive revolt against the Company, which is also known as India’s
First War of Independence.
www.karnikaseth.com/wp-content/uploads/history-and-evolution-of-
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patents1.pdf
impoverished domestic economy and eradication of the remnants of
colonization. While doing so, they observed that even though India
had made some progress in industries like steel production, India’s
indigenous pharmaceutical industry had been in very bad shape as
a direct result of the 1911 Act.4
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http://www.dailypioneer.com/columnists/oped/indias-patent-laws-journey-
from-british-raj-era.html,Makhan Sainika
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Farbwerke Hoechst & Bruning Corp. v. Unichem Lab., 1969 A.I.R. 56 (Bom.)
255
cheaper prices. The Bombay High Court judgment mentioned above
dealt with a patent infringement suit filed by the owners of an
Indian patent for the manufacture of new sulphonyl-urea
compounds, salts of those compounds, and of anti-diabetic
medications containing those compounds. One of the chemical
compounds covered by the patent was Tolbutamide, and “since
1957 the plaintiffs had been marketing it as an anti-diabetic drug
in India and all over the world under the trademark ‘Rastinon.’” The
main argument raised by the plaintiffs was that the defendant had
wrongfully infringed upon their patent by manufacturing,
preparing, and selling Tolbutamide by the use of the invention
disclosed in the plaintiffs’ patent.The first defendant admitted that
it had manufactured Tolbutamide, but claimed that it “had been
manufactured by the application of the processes mentioned in
another patent,” held by the Haffkine Institute of Bombay, the
second defendant. The first defendant also raised a counter-claim
to revoke the patent “on the grounds of insufficiency of description,
lack of novelty, want of inventive step and lack of utility.” The
Court held the patent to be valid and restrained the first defendant
from further infringement upon the plaintiffs’ patent.
[http://www.ipo.org/wp-
content/uploads/2013/03/Whitepaper-
PatentprocurementinIndia.pdf]
2.4.1 FINDINGS OF COMMITTEE ON INDIAN PATENT LAW
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http://www.nalsarpro.org/CL/Articles/InDepthAnalysisofIndianPatentLaw.pdf
2.5.1 Sailent Features of Indian Patent Act 1970
The Indian patents Act has been hailed as model legislation for
developing countries. It seeks to balance both the need for granting
rewards for inventors while ensuring that India's developmental
needs are not ignored.
The following essential features of the Act reveal the basic
patents policy of India:
1. General Principle of Patent Grant (a) that patents are
granted to encourage inventions and to secure that the inventions
are worked in India on a commercial scale and to the fullest extent
that is reasonably practicable without under delay; and (b) that
they a not granted merely to enable patentees to enjoy a monopoly
for the importation of the patented article".
2. Principle of National Treatment - no limitations or
restrictions on foreigners in applying for or obtaining patents in
India.
3. Inventions Not Patentable - The following are not patentable
(a) An invention which is frivolous or which claims anything
obviously contrary to will established natural laws;
(b) An invention the primary or intended use of which would
be contrary to law or morality or injurious to public health
(c) The mere discovery of a scientific principle or the
formulation of an abstract theory
(d) The mere discovery of any new property or new use for a
known substance or of the mere use of a known process, machine
or apparatus unless such known process results in a new product
or employs at last one new reactant
(e) A substance obtained by a mere admixture resulting only in
aggregation of the properties of the compounds thereof or a process
for producing such substance;
(f) The mere arrangement or re-arrangement or duplication of
known devices each functioning independently of one another in a
known way;
(g) A method or process of testing applicable during the
process of manufacture for rendering the machine, apparatus, or
other equipment more efficient or for the improvement or control of
manufacture;
(h) A method of agriculture or horticulture
(i) Any process for the medicinal, surgical, curative,
prophylactic or other treatment of human beings or any process for
a similar treatment of animals or plants to render them free of
disease or to increase their economic value or that of their
products".
4. Search for Novelty - compulsory search is required extending
to prior publications not only in India but also in any other part of
the world.
Patentability of Inventions in the Area of Chemicals, Food and
Drugs - In case of inventions relating to substances intended for
use as food, drug or medicines or substances produced by chemical
process, Patentability will be limited to claims for the methods or
processes of manufacture only.
6. Term of Patent - The term of the patent in 14 years from the
date of patenting, i.e., the date of filling the complete specification.
In the case of inventions in the field of food, drug or medicine, the
term will be 7 years from the date of filing or 5 years from the date
of sealing, whichever is shorter.
7. Licensing Provisions - 2 types of licenses: compulsory
licenses and license of rights. Compulsory licenses enabling another
party to work the patent can be applied for any time after the expiry
of three years from the date of sealing of the patent.
In the area of food, drug, medicine or chemical, after the
expiry of three years from the date of patent grant, they shall be
endorsed with the word "License of Right". These enable any
interested person as a matter of right to be entitled to work such
patents.
8. Royalties - In the case of patents related to food, drug or
medicines the royalty reserved to the patentee under a license shall
not exceed 4% of the net ex-factory sale price in bulk of the
patented article.
9. Use of Patented Inventions by the Government - In order to
ensure that scarcity of a patented article doesn't arise and lead to
high prices, the government is vested with powers to make use of or
exercise any patented invention merely for its own purpose.
10. Appeals - In all cases, appeals will be only with the High
Court.7
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India’s Patent Policy and Negotiations in TRIPs:Future Options for India and other Developing
Countries Dr. Anitha Ramanna
2.5.2 Comparison of India’s Patent Act and TRIPs
Indian Patent Act of 1970 TRIPs
Only process not product Process and product patents
patents in food, medicines, in almost all fields of
chemicals technology
Term of patents 14 years; 5-7 Term of patents 20 years
in chemicals, drugs
Compulsory licensing and Limited compulsory licensing,
license of right no license of right
Several areas excluded from Almost all fields of technology
patents (method of patentable. Only area
agriculture, any process for conclusively excluded from
medicinal surgical or other patentability is plant varieties;
treatment of humans, or debate regarding some areas
similar treatment of animals in agriculture and
and plants to render them free biotechnology
of disease or increase
economic value of products)
Government allowed to use Very limited scope for
patented invention to prevent governments to use patented
scarcity inventions
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*Source: Adapted from Patent Office Technical Society, Indian Patent Act,
1970 and Rules, 1991 and MVIRDC, GATT Agreements: Results of the Uruguay
Round, World Trade Centre, January 1995
THE PATENT REGIME IN ACCESSION TO WTO AND TRIPS
COMPLIANCE
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Indian Patent Law and TRIPS: Redrawing the Flexibility Framework in the
Context of Public Policy and Health V.K. Unni .