INDIAN PATENT LAW: SOME REFLECTIONS

The aim of this article is analyse some of the salient features of the Indian Patent law, i.e. the Patents Act, 1970. An effort has been made to analyse it in the light of TRIPS Agreement. India is a signatory to the TRIPS Agreement hence it modified its patents law in conformity with TRIPS Agreement. I. Introduction The existence of IPRs is very old. The basic aim of conferring an IPR upon the person owning the same is to give a social recognition to its holder. This social recognition can further bring economic benefits to its holders. It is just and reasonable to award a person an IPR in the form of “limited monopolistic rights” for his/her labour and efforts. At the same time, exceptions in the form of various licences are also made so that public interest cannot be compromised. The public interest and personal interests are thus reconciled in the form of limited period duration of these rights and their abuses can be tackled stringently, especially when public interest demands so. The problem of IPRs violations was not as much in ancient times as it is in the contemporary society. This has happened due to the advent of information technology (IT) and “Conflicts of laws” in various countries. The need of harmonisation of law concerning IPRs was felt at the international level. Thus, the TRIPS Agreement was formulated to bring basic level harmonisation in IPRs laws all over the world. The provisions of TRIPS Agreement are the most extensive and rigorous in nature. They protect all the forms of IPRs collectively. The protective umbrella of TRIPS covers the following IPRs: (1) Copyright and Related Rights, (2) Trademarks, (3) Geographical Indications, (4) Industrial Designs, (5) Patents, (6) Layout designs of Integrated Circuits, and (7) Protection of Undisclosed Information. It must be noted that by virtue of Article 1(2) of the TRIPS Agreements, the Control of Anti-Competitive Practices in Contractual Licences has been excluded from the definition of “intellectual property”. Thus, the TRIPS Agreement covers virtually the entire gamut of IPRs. II. Patents Act, 1970 and TRIPS Agreement The Indian Patents Act, 1970 provides patent protection in India. The same is in accordance with the provisions of the TRIPS Agreement. The recent conferment of “product patent” along with the “process patent” is an example of such compatibility. The protection to plant varieties has been excluded from the realm of patent law and a separate Act has been made for that purpose. Further, the provisions of “international patent application” and “compulsory licenses” are also in conformity with TRIPS Agreement and Doha Declaration respectively. Thus, the interest of the public at large has also been taken care of by the Indian Patents Act, 1970 and there is no need of being panicked from product patent of medicines. However, there is no need of a “further protection” to pharmaceuticals in the form of “Data Exclusivity” as the protection under the Patents Act, 1970 is not only sufficient but also in conformity with the TRIPS Agreement. The protection in the form of “Data Exclusivity” is a “TRIPS plus” provision to which Indian does not owe any obligation. III. Salient features of Indian Patent law The Patent law of India has the following salient features that decide whether a patent will be granted or not: (a) The object: The object of patent law is to encourage scientific research, new technology and industrial progress. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period of the monopoly, passes into the public domain. (b) Inventive step: The fundamental principle of Patent law is that a patent is granted only for an invention which must have novelty and utility. It is essential for the validity of a patent that it must be the inventor's own discovery as opposed to mere verification of what was, already known before the date of the patent. (c) Useful: The previous Act, i.e. Act of 1911, does not specify the requirement of being, useful, in the definition of ‘invention”, but courts have always taken the view that a patentable invention, apart from being a new manufacture, must also be useful. (d) Improvement: In order to be patentable, an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement, and must independently satisfy the test of invention or an inventive step. It must produce a new result, or a new article or a better or cheaper article than before. The new subject matter must involve "invention" over what is old. Mere collocation of more than one, integers or things, not involving the exercise of any inventive faculty does not qualify for the grant of a patent.

(e) The guiding tests: To decide whether an alleged invention involves novelty and an inventive step, certain broad criteria can be indicated. Firstly if the "manner of manufacture" patented, was publicly known, used or practised in the country before or at the date of the patent, it will negative novelty or `subject matter'. Prior public knowledge of the alleged invention can be by word of mouth or by publication through books or other media. Secondly, the alleged discovery must not be the obvious or natural suggestion of what was previously known. In short the “invention” must involve an inventive step and the same must be capable of “industrial application”. It must be supplemented by the concept of “non-obviousness”. III. Conclusion The Indian patents Act, 1970 is not only a complete Act but also in conformity with the TRIPS Agreement. It, however, needs enunciations in the form of judicial precedents as the same are lacking in case of patent law. It further must be analysed in the light of international developments in this field. The Indian Patent law must also be analysed in the light of both “Public International law” and the “Private International Law” as the same may create some problems in future. In the subsequent series, I will try to pick one by one each areas associated with Indian patent Law.

This article is submitted by Praveen Dalal, Arbitrator, Consultant and Adovate, Supreme Court of India, Managing Partner - Perry4law (Law Firm, New Delhi) (pd37@rediffmail.com/ perry4law@yahoo.com)