An Introduction to the Patent Regime in India: Overview and Historical Development

By | November 27, 2020
An Introduction to the Patent Regime in India

A patent is perhaps the most important form of IP right granted to people. It grants exclusive rights to the inventor to exploit the invention to the exclusion of all others for a period of 20 years. It is a strategy for protecting inventions without secrecy. In this article, the author seeks to briefly analyse the historical development of patent laws in India along with international developments. Further, the author provides a general outline on the concept of patentability and the basic criteria for an invention to be patent-eligible.  

I. Introduction

A patent is a monopoly right approved by the Government to exclude others from exploiting or using a particular invention. It is the most important form of Intellectual Property protection available to a person for his invention. They have great economic value and foster innovation and research in society. Patents have a very rich history and the laws regarding the same have evolved over the years depending on the needs of the society as well as the rate of technological innovation.

This exclusive monopoly granted by a patent is delivered in return to the inventor for revealing the details of the invention to the public. Therefore, the patent is a cartel right, which offers exclusivity to the patentee to exploit the invention for 20 years after which it falls in the public domain.

II. Historical Development of Patent Laws

While looking at the history of intellectual property, the existence of monopoly rights can be traced back to the Byzantine Empire. In the year 1432, the Senate of Venice enacted a statute providing exclusive privileges to those inventing any machine or process to speed up silk-making which was later extended to other inventions as well. A thorough trace of the history reveals that the earliest of the legislation for the protection of IP rights was in the area of patents through the Ordinance passed by the Venetian Senate in 1474. Thus, it is visible that the patent regime as we know today has evolved over 500 years.[1]

Britain is one nation which has a long and continuous patent tradition and which has immensely influenced the development of patent law in India. Its origin in England can be traced back to the 15th century during which period the Crown started making specific grants of privileges manufactures and traders that advanced her economic and industrial policies. These were known as letters patents which were often abused by the Crown to grant monopolies for an unreasonable period of time.

The cases of Darcy v Allen[2] and the Clothworker’s of Ipswich case[3] laid the groundwork for the transition of patents away from being monopoly rights granted under royal prerogative to being considered as the grant of legal rights to the inventors. This resulted in the Parliament and the Crown be to at loggerheads with each other during the first half of the 1600s.

To resolve the same, the Statute of Monopolies Act was passed by the parliament in 1623 which remained the sole authority on patents for a long period of time. It was only replaced by the radical piece of legislation, The Patents Act, 1977, which provides that patents must be granted by the European Patent Office (EPO) and discarded the old system of British Patent law.

III. Historical Development of Patent law in India

The Patent system in India emerged when India was still a colony of the British empire and therefore, the system in India was based on position in England. The first Act for the protection of inventions in India, i.e., Act VI of 1856 on the protection of inventions were based on the British patent law of 1852. This Act afforded certain privileges to the inventors of new manufactures for a period of 14 years.

It was modified in 1859 and certain exclusive privileges were granted to inventors for making, selling and using inventions in India, and authorising others to do so for 14 years filing specifications. Thereafter, Patterns and Designs Protection Act, 1872 and the Protection of Inventions Act, 1883 were passed which were subsequently consolidated as the Inventions and Designs Act, 1888 conferring ‘exclusive privileges’ to the inventor.

Following these developments, the Indian Patents and Designs Act of 1911 was passed to protect the interests of the inventors. Following independence, there were significant changes to the country’s socio-political and economic situation which necessitated the need for a new law to regulate the matter. It was strongly felt that the patent system must not be used so as to the detriment of the consumer or to the prejudice of industrial development in India. As a result, the government set up two committees- the Bakshi Tek Chand Committee in 1948 to review the working of the 1911 Act and to ensure whether the Indian patent laws were in line with broader national interests.

The Justice N. Rajagopala Ayyangar Committee was formed in 1957 to study and recommend changes to the patent law in India. The contributions made by both these committees led to the emergence of the Patents Act, 1970 which came into force on April 20th 1972. Subsequently, the Act has been amended in 1992, 2002 and 2005 to bring necessary modifications and to bring the same in line with international instruments such as the TRIPS Agreement.  The Indian Patent Act handles both products as well as process patents.[4]

IV. International Instruments for Patent Protection

With globalization and a massive increase in trade and commerce between world nations, it became necessary to have certain set international standards regarding intellectual property protection as well. It was felt absolutely essential because of the diversity in national laws which made it difficult to obtain patent protection in many countries. Some of the most important international developments in patent law are:

  • Paris Convention (1983): This can be considered as the foundation for international patent protection which awarded inventors with a rational base of international patent protection. This is often considered as the starting point for any IP rights anywhere in the world. It has been revised several times and today stands in the form of its 1967 Stockholm revision. It establishes many fundamental principles like national treatment, right of priority etc. Article 1.2 of the Paris Convention refers to patents as an object of the protection of industrial property.
  • Patent Cooperation Treaty: It is a procedural treaty under the Paris Convention and was brought in for establishing international cooperation in the field of patents and to make economical the filing of a patent application for a number of countries. It enables the filing of a single application called the international application which makes the process much easier for the patent applicant.
  • WIPO: It has adopted an international harmonization treaty on patent formalities called the Patent Law Treaty in 2000 to standardize divergent formal requirements applied in national and regional patent systems to patent applications. This will enable the users of the patent system to rely upon predictable and simple procedures for filing national and regional patent applications.
  • TRIPS Agreement: This is the most important international agreement which has laid down global standards for patentability of inventions. The TRIPS agreement contains specific provisions regarding term of patentability, what can be patented, non-patentable subject matter etc. India is a party to the TRIPS agreement and has accordingly amended the Patent’s Act to confirm with the standards set by TRIPS agreement. However, the agreement does not define the term patent or the term ‘invention’.

V. Objective of Patents

Patents are primarily granted to foster innovation and promote research and development in society. The ultimate object to granting patents is not just as an incentive to the inventor for the effort, time and investment on part, but also keeping in mind the benefits of his invention to the public at large. The exclusive right granted is temporary and expires after a period of 20 years.

The condition precedent for granting patents is that the inventor must make complete disclosure regarding the patent so that the knowledge of the invention incurs to the people, who are thus enabled without restriction to practise it and profit by its use.[5] It is thus important to understand that by granting patents, the inventor is not depriving the society of anything which it enjoyed before his discovery, but rather gives something of value to the community by adding to the sum of human knowledge.[6]

Thus, it is apparent that there exists a social contract implicit in the patent regime which requires that on the revelation of the invention to the society, the inventor gets exclusivity to the same for a limited period of time. In return, it ensures that others can work on it and improve the same.

Thus, it is very evident that patents are a negative right granted to the inventor to prevent others from commercializing or exploiting the invention. Patents have been instrumental in stimulating innovation and economic growth by protecting investment. Moreover, it facilitates the transfer of technology between different groups which not only encourages research and development but also stimulates competition in the particular field. However, it must be noted that patents are a territorial right and each country has its own patent legislation catering to the unique situations and needs of that particular nation. However, there are certain basic criteria regarding the patentability of inventions which are common to all nations.

VI. Conditions of Patentability

An invention must meet several standards if it needs to be eligible for patent protection. Section 2 (j) of the Patent’s Act provides that “invention” means a new product or process involving an inventive step and capable of industrial application. It essentially means that the invention must consist of a patentable subject matter, the invention must be industrially applicable (useful), it must be new (novel), it must unveil a sufficient “inventive step” (be non-obvious) and the complete revelation of the invention in the patent application must meet assured standards. The major three criteria for patentability are:

  • Novelty

Novelty is a fundamental requirement in any examination as to substance and is an undisputed condition of patentability. It must be highlighted, however, that novelty is not something, which can be proved or recognized; only its absence can be proved. An invention is new if it is not anticipated by the prior art. “Prior art” is all the information that existed prior to the relevant filing or priority date of a patent application, whether it existed by the way of written or oral disclosure.

Novelty is the core value for the grant of a patent under the Indian Patent Act but it does not mean that in case of an invention must be novel. If any part of the invention is new compared to the prior art, for example, new uses of known processes, machines etc., then it is considered as novel. Incremental improvements of the known processes are also considered novel and hence patentable.

  • Inventive Step/(Non-Obviousness)

In relation to the requirement of inventive step (also referred to as “non-obviousness”), the question as to whether or not the invention “would have been obvious to a person having ordinary skill in the art” is perhaps the most challenging of the criteria to determine in the examination as to substance. The annexation of a requirement like this in patent legislation is based on the evidence that protection should not be given to what is already known as part of the prior art, or to anything that the person with ordinary skill could assume as an obvious consequence thereof.

Thus, patents are not available for new advances that are mere obvious extensions or modifications of prior designs that could be achieved without the added incentive of patent rights. Under Section 25(1) of the Indian Patent Act, an obvious invention will not be patent-eligible. Under S. 2(ja) of the Act, “inventive step” has been defined as:

“A feature of an invention that involves technical advance as compared to the existing knowledge or have economic significance or both and makes the invention not obvious to a person skilled in the art”.

  • Industrial application

An invention must have an industrial application in order to be patented. Section 2 (ac) of the Indian Patent Act, 1970, states about “capable of industrial application” if any invention can be made or used in any kind of industry including agriculture then it is known to be a subject matter with industrial capability. This criterion is similar to the US Criteria of utility.

The US laws have relied on three types of utility to decide on the patentability of an invention. They are general utility, specific utility and beneficial or moral utility. To fulfil general utility, the invention should be capable of doing something. To fulfil specific utility, the invention should solve the problem it is designated to solve. To fulfil beneficial or moral utility the invention should have some minimum social benefit, and at least should not be harmful to society and mankind. However, it must be noted that industrial applicability and utility are slightly different since the latter has a wider scope than the former. Many inventions may be “useful” even without having immediate “industrial applicability”.

VII. Conclusion

To conclude, patents are perhaps the most important form of IP available to people to encourage the creativity of the human mind. A patent holder is granted exclusive rights to commercially exploit the invention to the exclusion of all others. As discussed above, the patent laws in India have been through multiple modifications, especially in light of the TRIPS agreement. Moreover, in order to get patent for a claimed invention, it must be novel, non-obvious and capable of industrial application as mandated by the Patents Act, 1970.


References

[1] Elizabeth Verkey, Intellectual Property (1st ed., 2015)

[2] (1602) 11 Co Rep 84b: 77 ER 1260

[3] 1653 Goldbolt 252: 78 ER 147

[4] Supra note 1

[5] United States v America Telephone Bell Co., 42 L Ed 144, Available Here

[6] Supra note 3


  1. Rights of a Patentee under Indian Law
  2. How COVID-19 can Impact the Patent Laws of Essential Medicines in India

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.