CHAPTER I INTRODUCTION

Imagination is not only the uniquely capacity to envision that which is not, and, therefore, the foundation of all invention and innovation. It is arguably the most transformative and revelatory capacity, it is the power that enables us to empathize with humans whose experience we have never shared1. J.K. Rowling The beginning of civilization is the discovery of some useful arts, by which men acquire property, comforts or luxuries. The necessity or desire of preserving them leads to laws of social institutions. The discovery of peculiar arts gives superiority to particular nations, to subjugate other nations, who learn their arts, and ultimately adopt their manners; hence we can say that the origin as well as the progress and improvement of civilized society is founded in mechanical and chemical inventions. As said by Sir Francis Bacon, the work of an inventor though of less pomp is felt everywhere and lasts forever. Inventions of new products and of processes in todays sc enario involve the collective efforts of many highly skilled scientists and professionals which act as engine of growth of industry and commerce around the world. Invention is an act of creativity which results in a device, progress, or technique novel enough to produce a significant change in the application of technology. In simple words, we can say that it is the act of striving to create a new method, solution, process or device by testing or studying an idea or group of ideas. All that which is produced originated by labour, skill, judgment and efforts of a man is called as intellectual property. And everybody has an inherent right to protect his intellectual property as it is well settled principle of law that no one should gain of a thing which has been produced by the labour, skill, judgment and efforts of an another person.

http:// www.google.co.in/gwt/x=http://www.goodreads.com/quotes/tag/inventions&q, dated 15-22012 1

Therefore almost all the countries in the world have formulated statutes for safeguarding intellectual property. With the rapid growth of industrialization and international trade, intellectual property law has become important for protection of public at large and specially the inventor. Intellectual Property Rights are the rights awarded by society to individuals or organization principally over creative works, inventions, literary and artistic works and symbols, names, images and designs used in commerce. They give the creator the right to prevent others from making unauthorized use of their property for a limited time period. Intellectual Property Rights are essentially based on a balance between two sources of value. Public welfare is furthered when new knowledge is disseminated and widely used, both in production of goods and in production of further knowledge. Private incentives to innovate are high when the inventor is able to reap the rewards from his efforts. On one hand the inventor is granted a temporary monopoly over an invention and its derivatives applications, thereby gaining protection from unauthorized exploitation of his technical know how and a strong incentive to innovate. On the other hand, if the technical knowledge were disclosed for public use, its accessibility would stimulate the generation of knowledge spillovers and the transfer of technical knowhow throughout the economy. Accordingly, intellectual property right legislation aims to optimize social welfare and to strike a balance between monopoly and disclosures. In India intellectual property rights are protected by the following enactments i.e. The Patents Act, 1970; The Copyrights Act, 1957; The Trade Mark and Merchandise Act, 1958; The Designs Act, 1911 and The Geographical Indications Act, 1999. Patent Law in India has its root in the patent system established by British in the 1800 AD. Constitutionally at that time the patent was granted by the crown. The Act of 1856, which provided patent- like rights term exclusive privileges, which were granted to inventors for a period of fourteen years in India. Procedurally, however this Act had no effect as it was not sanctioned by the Queen and arguably the Indian Legislature Council was not competent to pass the Act. Accordingly, in 1857 the Act of 1856 was repealed (Act IX of 1857) and in 1859, act XV of 1859 was properly passed. A patent is a form of Intellectual property right granted and protected by the law. The word patent refers to a monopoly right over an invention. Not all inventions are patentable
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nor it is essential to protect them solely through patents. The final products that results from an invention may be protected through other forms of intellectual property rights. Inventions may also be protected through trade secrets and confidential information even if they are already protected by the Patent law. In cases where the novelty of a product are resting in its designs and not in its function, the product can be the subject matter of a registered design or a copyright.2 A patent is a grant of a right or privilege, or authority over an invention. In a sense, it is a limited monopoly granted by the state under the statute in return of the disclosure of the technical information.3 A patent is important in the protection of ones intellectual labour. As it is a monopoly grant made by sovereign authority to the inventor in return of his disclosure of the technical information. Patent is very important for the economic growth and progress of society, as the development of technologies and improvements in the industrial working mainly depends upon the growth of the invention which is capable of industrial application. The patent system is often justified by two theories first is incentive to invest and second is incentive to disclose. The incentive to invest is based upon the assumption that if big companies will invest in the working of the invention then they will get monopoly over the product in the market, which will fetch them good capital against rivalry companies, because as we know that the process of innovation needs a lot of time and capital of investment which cannot be done by individual inventor alone, as he needs a lot of time and capital for investment, which cannot be done by individual investor alone, as he needs capital to carry out his invention. The investment of capital in the working of the invention by the companies will be sort out the problem of investment in the invention and the companies on the other hand will get monopoly over the patented product in the rivalry market which will boost their economic value and market strength. The incentive to disclose theory is based on assumption that investment in new ideas, will reap good capital to patent holder as he will have monopoly grant over the invented article and no one can use such invention without his permission, because of development of technology, the invented equipment if not protected through the patent is liable to be appropriated by the competitors at a very little expense. Now

Khader Firoz Ali, The Law of Patents- With Special focus on Pharmaceuticals in India, (2007), p.2 Bently Lionel, Sherman Brad, Intellectual Property Law,( 2003), p. 309 3

a day, it is easier and possible to know the secret steps taken by the inventor in making of the invention. In this way patent provides incentive to innovate without any fear of being copied. Hence, we can say that the principle objectives of the patent system are not only to provide protection to inventors, but also to encourage innovation, to promote the development of technology and to foster its dissemination for the welfare of the society. An effective patent system is very important for the promotion and protection of nations economic growth and creation of wealth. As a general rule, in order to strike a balance between the exclusive rights conferred by a patent and the interests of society at large, patent systems throughout the world seems to share at least one of the following four features: firstly, The patent system must qualify to reward only qualified invention; secondly, The inventions must sufficiently be disclosed so that the public is in a position to share the knowledge of the inventor after term of patent expires; thirdly, The term of protection must be limited in time; fourthly The exclusive rights of the patentee should not extend to certain acts performed by third party. All the patent systems of the world comply, to a different extent the abovementioned four features and have been developed with the intention to meet those objectives and to find out an optimal balance among various stakeholders operating in the specific social, cultural and economic environment of the country or region concerned. Despite the similarity between the patents law, patent law are also inherently diverse for three reasons. The first reason is due to the centuries old principle of territoriality. According to the territoriality principle, intellectual property rights are protected only within and in accordance with the legal rule of the jurisdiction where they have been granted. For example, The Patents Act 1970 contains the rights of patentee under section 48 which provides that the grant of a patent confers a right to exclude others from making, using, offering for sale or selling invention throughout India. Thus, whoever without authorit y makes uses or sells any patented invention, within India during the term of patent, therefore, infringes the patent. In short, we can say that as the legal rights and protection of patents are limited within their jurisdiction by territoriality, countries naturally develop and maintain their patent laws differently from one another. Second reason of diversification of patent laws is the governments use of patent law as a policy tool for economic growth. As we know that every nation has its separate policy and preferences. Laws are enacted keeping in view those preferences by the state.

Thus, in enacting Patents Law, every country decides for itself what intellectual assets to protect within its borders, and adopt patent policies in connection with preferences of its society. In other words, the standard for patents should be intimately tied to a nations economic goals, and especially to its industry, technological potentials and the types of innovations it hopes to foster. In this sense, patent law is established on the foundation of its national policy. Thus, to have a valid patent, an applicant must incorporate all requisite administrative formalities provided under the law that creates patent. Third reason of diversification of patent laws is that, a nations cultural factor makes its each patent system unique. As we know that a Culture has a direct impact on the expectations and preferences of people, which in turn have an impact on the economic outcome. A powerful example of cultural impact on the patent system is the different approaches to the notion of property. Historically western societies have emphasized property rights as one of the natural rights. On the other hand, certain cultures emphasize commonality. The Chinese believe that inventions and creative works belong to the community or the government and should be treated fairly. Efficient and well functioning patent system needs to promote innovation and the disclosure of dissemination of patent information as well as to serve the public interest, by aiming at achieving a system which, although relying on the grant of private rights, ensure that those rights translate into benefits to the public at large. Such a patent system should be characterized by a number of features, among which the following appear to be particularly relevant. In order to maintain the ongoing cycle of innovation, the patent system should remain an instrument which attracts investment into creation of innovation. In recent years, there has been started awareness in the society regarding the benefits of patent law as no one allow that the product of his labour, skill and intellect will be exploited by another person. Due to this reason there has been tremendous increase in the number of patent applications. Patent affords protection to the inventor for invention for a limited time period in exchange of the disclosures of all necessary knowledge to ensure its commercial working. As patent is very important for general wealth and is good indicator of health of science and technology of a country. As, a number of patent applications filed and patents granted have become, throughout the world, a sort of index of the countrys economic progress and prosperity. Patents thus, are important in not only securing national interest but also contribute a lot in the development of the nation. A patent helps a country to recognize the innovation of a

person who was anonymous prior to the invention and his invention in turn proves to be beneficial to the society.

I.

IMPORTANCE AND RELEVANCE OF STUDY As we know that the economic progress is associated with the technological progress.

Ensuring such progress necessitates an effective patent system. Although the patent regime provides and has provided measures for protection against the unlawful/ unauthorized use by unscrupulous persons and thereby causing monetary as well as motivational loss to the inventor. The present study is being carried out with the following specific objectives: (a) To find out and access the knowledge about various reasons for delay in grant of patent to the invention. (b) To examine the factors causing hindrance, delays and influencing smooth, timely, cheap and speedy justice to patent litigants and suggestions thereof. (c) To examine loopholes and shortcomings in various statutory provisions relating to patent law in India; (d) To examine the genesis of patent law in India.

II

OBJECTIVES OF THE STUDY The objectives with which the study is carried out are: (a) (b) (c) (d) (e) To understand meaning and kind of patent; To trace origin of patent in general; To high light the patenting procedure laid down under Indian legislation; To evaluate the legislative provisions governing patent in India; To suggest possible suggestions/amendments/ alternatives for patenting, patent protection etc.

III

HYPOTHESIS OF THE STUDY The study is based on the following hypothesis: Whether the existing patent law in India provides sufficient protection to patentee? Whether the Patents Act, 1970 covers all the things necessary to the patentee?

IV

RESEARCH METHODOLOGY The present study of the Critical Study on Patent Act, 1970 is of vital importance to

academicians, legal luminaries, advocates and to the law students. In executing the present study the method involved is basically based on doctrinal approach. The researcher will gather information from various books, judgements of courts, articles, journals, magazines, encyclopedia, internet etc., which are concerned with the subject matters. V CHAPTERISATION In the recent times, there has been started awareness in the society regarding the benefits of patent law. As we know that no one wants that the product of labour and skills will be exploited by another person. Due to this there has been tremendous increase in the number of patent applications being filed in the patent office in India. The study is an attempt to know the procedure of patenting in India under the Patents Act. The study has been focused on the growth and development of patent law in India after Independence including improvements made in the provisions by way of enactments and amendments from time to time. There is also focus on the practical experience, difficulties and successful achievements in the areas of patenting. The work includes historical perspective and comparative analysis of patent law in India. The scope and ambit of study has been centered to examine the practical difficulties of Patents Act, 1970. It has been pursued whether the Indian Judiciary has succeeded in fulfilling the constitutional obligations and legislative measures provided by the parliament so as to achieve the adhered target. The work has evaluated the mechanism of granting patent through doctrinal approach. Keeping in view the procedure of patenting under The Indian Patents Act 1970, the study has been decided into six chapters. Chapter I is an introductory part of the study. This, chapter deals with introduction of patent, as to what is patent, why is patent required, object of the study, research

hypothesis, the methodology with which dissertation is made and the scope of the study. Chapter II deals with the meaning, definition, object and criteria of patentability under the Patents Act 1970. In India, the grant of Patent is governed by the Patents Act 1970 as amended by the Patent (Amendment) Act, 1999 and 2005 and the Patent Rules.

The Indian Patent Act has been comprehensively modified and now it is possible to secure protection for new products in all the fields of science and technology including chemicals, pharmaceuticals, agricultural chemical products, food etc. The Act has been improvised so as to meet the requirements of various International Conventions. Section 2 (1) (m) of Patents Act 1970, defines Patent means a patent for any invention granted under this Act. An invention has been defined under Section 2 (1) (j) defines Invention means a new product or process involving an inventive step and capable of industrial application. The Act retains the old definition of invention under section 2 (1) (j) but adds a definition on new invention which means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art.4 The newly introduced definition of new invention can be interpreted to act as a check on section 25 (d) (e) and section 64 (e) and (f) of the Patents Act 1970, as amended.5 These provisions deal with the use of anticipation by prior public knowledge pr prior public use in India as ground for opposing or revoking a patent application or patent as the case may be. This amendment may avoid granting of frivolous patents for low threshold inventions.6 In Chapter III an earnest attempt has been made to trace out the genesis of the patent law. The analysis contained in chapter III of the present study throws light on the genesis of patent. The study reveals that the notion that patent law genesis dates back to ancient times. History of patent law is considered to have started in 500 B.C., in the Greek city. However, early customs bear little resemblance to for several centuries of Middle Ages; the guild system was prevalent form of monopoly. Guild was a group of craftsmen or merchants, which exercised control over their respective skills by the use of monopoly. The guilds obtained, by the Charter, the right of exclusive sale of goods made by them within a defined
4

See Section 2 (1) The Patents act 1970 (as amended) Opposition of the Patent, Section 25 (d) and 25 (e) Revocation of Patent, see section 64 (e) and 64 (f) 8

geographical area in which they were based. Outside of the guilds there is a little evidence to support any claim that there was a system of monopoly grants that can, in any way, be likened to the modern conception of patent protection until the statute of Venice, promulgated in 1474. And the study of guild system shows the development of the patent system. A guild was a group of craftsman or merchants, defined by their trade and skills. If a tradesman had to practice their relevant are he had to join the relevant guild or else face rampant opposition from its members. The guilds obtained by the Charter, provided the right of exclusive sale of goods made by them within a defined geographical area, such as town or municipality in which these were based.7 Outside of the guilds there is a little evidence to support any claim that there was a system of monopoly grants. These grants were not made only for Venice citizens but were also made to ingenious persons from abroad. In 1474, The Venetian statute contained all of the essential features of a modern patent law. It provided that the device novel, not previously made in the common wealth and reduced to perfection. With the discovery of sea routes around the Cape of Good Hope at the end of fifteenth century, spread the knowledge of Venetian patent custom. In Britain The Statute of Monopolies which it enacted suggests not only the growing significance of trade in the countrys economy and the beginnings of the long political campaign to favour competition at the expense of monopoly; it also shows the readiness of the political forces represented in Parliament to challenge policies of convenience to the Crown. It is own way it reflects some of the conditions which gradually coalesced to make England the first country to leap forward into industrial production. In 1883,8 the modern Patent Office replaced the Commissioners of 1852 and it began to examine applications, mainly for formal defects and for sufficiency of description. It was not until 1901, when the Fry Committee demonstrated that 40 percent or more of the patents granted were for inventions already described in earlier British specifications, that the change became irresistible. The office began to search British specifications of previous 50 years in

Fisher Mathew, Fundamentals of Patent Law, (2010), p. 24. Patents, Designs and Trademarks Act 1883. Again the initial fees were reduced and the number of Patents granted rose from under 4,000 p.a. to 9,000 pa. 9

1905,9 but the examination was confined only to novelty. It is by this time accepted that a patent once granted might be attacked for obviousness or lack of inventive step.10 Indian patent law evolved during mid-nineteenth century. The first patent law was passed in British India in the year 1856. The Indian Patent law was governed by The Patents and Designs Act 1911, which remained into force till independence. The Indian Patent Law is mainly based upon the findings of Justice Rajagopala Ayyangars Committee. The Committee submitted its report in 1959, with certain recommendations and radical changes in the law. On the basis of this report a patent bill was introduced in Lok Sabha in 1965 which however lapsed. An amendment bill introduced in 1967 which was referred to joint parliamentary committed and on the final recommendation of the committee the Patents Act 1970 was passed. This act remained in force till 1994. Subsequently an Ordinance was passed and Patents (Amendment) Act 1999 was brought into force with retrospection from Ist January 1995. The second amendment came into force with amendment act of 2002. This Act came into force on 20th May 2003 with introduction of New Patent Rules 2003. The third amendment was introduced with Patent Amendment Act 2005 which was passed in 2004 through an ordinance and brought into effect on 1st January, 2005. Chapter IV- deals with legislative provisions of patenting in India. This chapter deals with the procedures of patenting in India and consequences attached. Procedure of patenting involves these steps: (a) Submission of application. (b) Publication and examination of application. (c) Advertisement of acceptance of complete specification. (d) Opposition of grant of patent to applicant. (e) Hearing of parties. (f) Grant and sealing of patent. Chapter V- deals with the critical evaluation of the patent law in India. The role of judiciary, in adjudication of the patent law in India. Though, Indian law aspires to touch all the points relating to patent so as to meet the international criteria, but still there are certain
9

Patents Act 1902 Supranote 8, pp 1114-115 10

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lacunas that withhold the growth of patent law in a positive manner. There are certain technical deficiencies and some of the definition part of the patent law needs to be amended so as to include or exclude the relevant terms. Chapter VI is devoted to conclusion and suggestions drawn during the course of the study. The study reveals that the Patents Act 1970 suffers from certain drawbacks, to remove these drawbacks there are certain suggestions given in the chapter.

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