The Patent Act, 1970
Guide to Patent Law in India
Understanding The Patents Act, 1970
The Journey of Indian Patent Law
India’s patent legislation has evolved significantly, moving from a colonial-era framework to a system designed to foster indigenous innovation while balancing public interest. The Patents Act, 1970 was a pivotal moment in this journey, establishing the foundation of the modern patent regime.
1
1856
Act VI, the first patent law, is enacted based on the British model.
2
1911
The Indian Patents and Designs Act is passed, consolidating previous laws.
3
1970
The landmark Patents Act is enacted, focusing on national interests.
4
2005
Major amendments align the Act with the international TRIPS agreement.
Core Principles of the 1970 Act
The Act was designed to be more than just a framework for granting monopolies; it embodies a philosophy of balance, ensuring that the rights of inventors serve the greater good of the nation and its citizens.
Public Interest First
Ensures patented inventions, especially in health and food, are accessible and affordable.
Compulsory Licensing
Allows others to produce a patented product if it’s not being supplied adequately or affordably.
20-Year Term
Provides a standard 20-year protection period from the filing date for all patents.
What Makes an Invention Patentable?
To receive patent protection in India, an invention must successfully pass three fundamental tests. These criteria ensure that a patent is granted only for genuine, useful, and non-obvious advancements, preventing the monopolization of existing knowledge.
1. Novelty
Must be brand new and not part of the existing public knowledge (‘prior art’).
2. Inventive Step
Must be non-obvious to a person skilled in that specific field of technology.
3. Industrial Applicability
Must have a practical use and be capable of being made or used in an industry.
Navigating the Boundaries: What Cannot Be Patented
Even if an idea is new and useful, the Patents Act explicitly lists certain subjects that are not considered patentable inventions under Sections 3 and 4. This is done to protect the public domain, prevent monopolies on fundamental principles, and uphold public morality.
Key Exclusions Include:
- Scientific principles or abstract theories
- Discoveries of natural substances
- Methods of medical treatment
- Computer programs per se & business methods
- Literary, dramatic, or artistic works
- Inventions based on traditional knowledge
- Inventions related to atomic energy
Types of Patent Protection
The Indian patent system primarily grants utility patents which can be categorized based on their subject matter: the product itself or the process to create it. This distinction has significant implications for innovation and competition, particularly in the chemical and pharmaceutical industries.
Product Patent
Protects the final physical product. It prevents others from making, using, or selling that product, regardless of how they made it. This offers a broad and powerful monopoly.
Process Patent
Protects a specific method or process of manufacturing. Competitors can still make the same end product, but they must use a different, non-infringing process to do so.
The Patent Application Process
Securing a patent involves a structured application process. Inventors can start by filing a provisional application to secure an early filing date, which is crucial for establishing priority, before submitting a detailed, complete application.
1. Provisional Application
File to establish a priority date. Invention is still under development.
Within 12 Months
The next step must be taken within a year or the application is abandoned.
2. Complete Application
File a full specification with detailed claims about the invention.
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The Journey to a Patent in India
Securing a patent in India is a multi-step process designed to ensure that only novel, non-obvious, and industrially applicable inventions are granted protection. Here is a simplified breakdown of the typical procedure.
Conception & Search
The process starts with an invention. A thorough patentability search is conducted to check for existing similar inventions (prior art).
Filing the Application
An application is filed with the Indian Patent Office, either as a provisional or complete specification, establishing a priority date.
Publication
The application is published in the official patent journal 18 months after filing, making the invention public knowledge.
Examination
Upon request, an examiner reviews the application for compliance with the Patent Act and issues a First Examination Report (FER).
Grant of Patent
After successfully addressing all objections, the patent is granted and announced, conferring exclusive rights for 20 years.
Taking Your Invention Global
A patent granted in India is only valid in India. To protect your invention in other countries, you must file applications in those specific jurisdictions. There are two primary international routes an applicant can take.
🌍 The Paris Convention Route
This route allows you to file separate patent applications in other member countries within 12 months of your initial Indian filing date, claiming the original “priority date.”
- Direct filings in each target country.
- Best for a small number of target countries.
- Costs are incurred for each country upfront.
⏳ The Patent Cooperation Treaty (PCT) Route
File a single “international” application that provides a longer timeframe (up to 30/31 months) to decide which specific countries to enter for the “national phase.”
- Centralized initial filing and search process.
- Delays major costs, allowing time for strategy.
- Ideal for seeking protection in many countries.
The Patentee’s Power & Responsibility
A patent grant is a bargain between the inventor and the state. In exchange for disclosing the invention, the patentee receives exclusive rights, but these come with important obligations to fulfill.
✅ Your Rights as a Patentee
- Exploit: Exclusive right to make, use, sell, and import the invention.
- Assign & License: Right to transfer ownership or grant licenses to others for royalties.
- Sue: Right to take legal action against anyone who infringes upon your patent.
- Surrender: Right to voluntarily give up the patent rights before the term expires.
❗ Your Obligations
- Disclose: Duty to fully and clearly describe the invention in the patent application.
- Work the Invention: Obligation to ensure the invention is commercially worked in India to meet public demand.
- Pay Fees: Responsibility to pay periodic renewal fees to keep the patent in force.
Balancing Innovation with Public Interest
Patent rights are not absolute. The Act includes provisions to prevent the abuse of patent monopolies and to ensure that the public interest is protected, especially in critical areas like public health and national security.
Grounds for Compulsory Licensing
After 3 years, others can apply to use a patent if key conditions are not met.
Acquisition by Government
The Central Government can acquire a patent for a public purpose, provided fair compensation is paid to the patentee.
Secrecy Directions
The Controller can prohibit the publication of patent applications for inventions relevant to national defense.
Protecting Your Patent: Infringement & Remedies
Patent infringement is the unauthorized use of a patented invention. The Patent Act provides robust legal remedies for patentees to enforce their rights and seek relief against infringers.
What Constitutes Infringement?
Any of the following acts performed without the patentee’s permission constitutes infringement:
- Making, using, or selling the patented product.
- Importing the patented product into India.
- Using the patented process.
- Selling or importing a product made directly from a patented process.
Primary Legal Remedies Available
A patentee can file a lawsuit to seek various forms of relief from the court.
