Unit-5 Introduction to Intellectual property Rights (IPR)

 Introduction: 

Intellectual Property Rights ( IPR) : 

Before we study the “Indian Patents Act”, we should try to know and understand the “Intellectual Property Rights” as the ‘Indian Patents Act’ has been implemented under the provisions of ‘Intellectual property Rights’ only.

Intellectual property rights is a General term which includes Patents, Copyrights, trademarks, Industrial Designs, Geographical Indications, Protection of Layout Designs of Integrated Circuits (IC) and trade secrets (example : Copyrights:- include literary and Artistic works such as Novels, Poems, Plays, Films, Music, Drawings, Paintings, Photographs, Sculptures and Architectural Designs, Television Serials Etc. These are covered under ‘Indian Copyrights Act 1957’ also).

“Intellectual Property Rights” was introduced in the early years of 20th Century in India which was already existing in other Western Countries by that time only.

“Intellectual Property Rights” is a right granted to an individual or a company which provides exclusive rights to the owners of Intellectual property on a specific property to reap the monopoly profits on it who can sell it to others for his invention or his own creation of that property. Generally such rights are granted for a maximum period of 20 years after which it becomes public property. Such a period can be reduced or extended depending on the laws, circumstances and the type of property.

Patents are one of the oldest forms of Intellectual property rights. The main objective of granting a patent is to encourage New Inventions, Economical and Technological developments and Innovations.

Definitions :

1). Patent :A patent is an exclusive right granted by a country to the owner of an Invention to make use, manufacture and market the Invention, provided the Invention satisfies certain conditions prescribed under the “Indian Patents Act 1970”.

2). Invention :Means any New and useful Art, process, a drug or a medicine, a new method of manufacture, Machine, Apparatus, Articles, New substances and its manufacture which can be patentable under the provisions of Indian Patents Act 1970.

Indian Patents Act (1970) :

Indian Patents Act was implemented in the year 1970 to grant exclusive rights to the Inventor for his Invention for a limited period of time which is generally 20 years and where as it is generally 7 years for Drugs or Medicines and foods with certain conditions prescribed for the Registration of a patent.

When once a patent is granted / Registered to an Individual or a company, They shall hold the exclusive rights over that patented product for the period to which it has been granted. They can either sell it to others or manufacture the same and sell them in the market by fixing their own prices so that they will reap the benefits of such Invention to the maximum extent. A patent granted is like a reward granted to the Inventor so that he can enjoy the benefits/ profits earned out of it as no other person can claim any rights or copy it for the period to which the patent has been granted to the Inventor

Indian patents act has been amended again in 2002 by aligning with TRIPS agreement (Trade Related aspects of Intellectual Property Right) arrived through International agreement with different countries. Amended act is called as Indian patents (amendment) act 2002 which was passed on 25thJune 2002 in the parliament of India and again amended in 2003 and 2005.

        Indian patents act provides patent protection in India only and if any person wants to get his Invention patented in any other country, he should get it patented in that country also by following the conditions prescribed in that country which is in accordance with the TRIPS agreement. The word patents is a Latin word namely ‘patence’ is ‘to open up’ or ‘find out a means’ or ‘to give on exclusive right’ to a person on a certain newly invented product. A person who gets a patent registered in his name is called as patentee

Main objectives of Indian patents act 1970

1) To encourage scientific Research, New technology and the Industrial

Progress.

2) To encourage new methods of manufacture of a product.

3) To recognize and reward the person who has created an Invention.

4) To safeguard the patented product from being copied by others.

5) To Grant a monopoly over patented product to the patentee so that he can recover the cost spent on Invention and to make a profit until the end of patented period. and

6) Also to safeguard the public from being exploited by the patentee who may be charging the product at an exorbitant rate etc. by prescribing certain conditions while granting the patent only. 

Types of inventions which are patentable:

1) It should be technical and feasible.

2) It should be Novel: means the matter disclosed in the “Complete specification” is not published earlier in India or other countries before the date of filing for patent.

3) It should be Inventive with a new method of making or manufacturing. 

Types of Inventions Not Patentable :

1) An Invention which as frivolous (which is not having any serious purpose or value, careless, superficial) and claims wrongly as a New Invention.

2) An Invention which is against the Law of the land, or morality or Injurious or harmful to public Health.

3) A mere Discovery of a scientific principle.

4) A mere discovery of a New substance and its process which is already existing in another name and process unless they differ significantly. (Example: various polymers).

5) A substance obtained by merely mixing with other Known substances.

6) A mere arrangement or Rearrangement or duplication of a Known substance, device or procedure.

7) An Improved method of operating an equipment or a device or a New and Improved method of manufacturing which is already existing.

8) A new method of Agriculture or horticulture.

9) Any new or improved method of surgical procedure or Medical procedure for Human treatment or veterinary treatment, or for cure of diseases.

10) Any further improvements in computer operating or programming.

11) Inventions related to Atomic Energy which fall under section 20 of the “Indian Atomic Energy Act 1962”.

Procedure to be followed for obtaining / Registering a Patent : 

A) Filing:

The following procedure in general has to be followed for getting a patent Registered. 

1) An Application in a prescribed form along with the prescribed fee and necessary documents have to submitted to any one of the controllers of patents in four regions namely Kolkata, (which is actually the Head office) Chennai, Mumbai or Delhi depending on the regions to which the patent Applicant belongs.

2) Application can be filed by the Inventor only or any of the authorised person on behalf of the Inventor.

3) Separate applications have to be filed for each Invention.

4) Application should be made with provisional and complete specification containing Title, Abstract, Written description of the Invention, Drawings, Sample or a Model, mode of carrying out the Invention claims and deposit ( i.e. deposit means the sample of microorganisms which have been invented should be deposited in ………………………… Chandigarh)

5) The following documents should be submitted along with the application at the time of filing:

a) Application for the grant of a patent

b) Provisional and complete specification as explained above

c) An undertaking and statement by the Applicant

d) Form of Declaration claiming the ownership of Invention.

e) Authorization letter if the Inventor has authorised any other person for getting the patent Registered.

  B). Publication of the Application:

6) A Patent Application made shall be published by the Controller on completion of 18 months from the date of filing the Application for patent, It can also be published earlier on the request of Applicant.

  C).Examination:

7) The Process of Examination of Application for patent Registration shall start within 36 months from the date of filing on the request for Examination by the Applicant.

8. On receiving such a request, The controller shall verify all the documents

submitted and if found correct, shall direct the Examiner to submit his report within one month.

9. On examination of the entire Invention, if the Examiner finds any defects, may accordingly bring it to the notice of the controller and the Applicant.

10. Applicant shall make all the necessary corrections and submit the same to the controller and Examiner once again for Registration.

11. The controller if not satisfied of the Report, may reject the Application for Registration or publish his report for any opposition from an Individual or public and then order for Registration. 

D). Opposition:

12. On receiving any Opposition notice from any person the same may be brought to the notice of Applicant and the controller shall constitute an “Opposition Board” for Investigation / and Enquiry.

13. The “Opposition Board” shall carry out the Investigation by calling both the parties and hearings from them including any documents of proof submitted by any of them.

14. After the Investigation the “Opposition Board” shall decide the case either in favour of Applicant or opposition party depending on the merits of the case and issue an order accordingly to the controller, Applicant and the opposition party.

15. Based on the order/ Report of the “Opposition Board”, The controller shall decide and Register the Invention and issue a Registration (Grant) certificate to the Applicant / Inventor who shall become a patentee then on wants for specified period or Reject the Registration, If the Report is against Registration.

16. A patent Granted / Registered shall be published in the official gazette of India which shall be open to public inspection then onwards.

Removal ( Revocation or Cancellation) of a Patent:

A patent Granted or Registered may be revoked or removed by the order of an High Court only on the following grounds or reasons on the petition of any person or by a petition of the Central Govt.

1) That a patent was registered wrongfully due to any error or misrepresentation of facts or for hiding certain facts and figures or in contravention of any of the provisions of “Indian patents Act”.

2) That it had been already patented by any other person on a priority application.

3) That the person was not entitled to get that patent Registered under the provisions of Indian patent act.

4) That the patent Registered was not actually an invention as claimed under “Complete Specification” of the Invention.

5) That the “Complete Specification “provided for such an Invention was already existing or already known in India or elsewhere.

6) That there were no inventive steps involved / carried out during the course of Invention or such steps were already known or existing in India or elsewhere.

7) That such an Invention is not useful for any purpose.

8) That the “Complete Specification “provided for the Invention dose not or did not describe the procedure or steps or method to be followed completely, properly and correctly.

9) That the “Complete Specification” is not clearly nor properly defined as required under the Act.

10) That the subject matter of the Invention and the complete specification provided itself is not patentable in India.

11) That the Applicant has failed to provide correct, proper and clear information in the Application or about the Invention or about the “Complete Specification” as required under section 8 of the Indian patents Act.

12) That a patent has already been granted outside India which has not been disclosed in the Application for patent in India.

13) Accordingly a Notice shall be issued to the owner of patent to appear before the High court and after providing sufficient time for all the legal procedures to be followed and if the high court is of the decision that the patent has to be Revoked or Removed shall do so by an order.

If the person is aggrieved of the decision of High court can appeal in the Supreme Court for the Restoration of patent. However decision of the Supreme Court is final.

14) Then the controller of patents shall Remove or Revoke a patent from the Register and accordingly issue on order of Revocation of a patent.

15) If it comes to the notice of central Government that a patent granted already is mischievous and misleading and harmful to the public in general may order for the Removal of such a patent after providing an opportunity to the patentee for an explanation.

Offences and Penalties :

1) If any person fails to comply with any secrecy directions given for defense purpose shall be punishable with an imprisonment up to 2 years or with fine or with both.

2) If any person makes any false entries in the patent Register is also liable to be punished with a fine or an imprisonment up to 2 years or with both.

3) If any person falsely claims to be a patent holder is liable to be fined up to Rs. 500/-

4) If any company commits any of the above types of offences, the person in charge of the company (CEO, chairman) etc. shall be held responsible and accordingly similar punishment is awarded to the person who has committed such an offence knowingly or unknowingly.

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