“A study of the patent system in India in the light of the Patent Cooperation Treaty”
This article on ‘patent system in India‘ is written by Shubham Agarwal. A 5th year law student from Sharda University, and an intern at Legal Upanishad.
This article studies the Patent System in India. A Patent is a type of intellectual property rights that provides its owner the legal right to exclude others from producing, selling & distributing for a limited time in exchange for a license issued by the patent granting authority. In a country like India and many other countries rights of the patent owner are protected from infringement of the production process from making, using & distributing & in case of violation the owner can sue other people for an infringement in order to restore his rights.
“Ideas can’t be protected but the actions can be if they are registered”
What is a Patent?
A Patent is an exclusive right that is available to the product or a process, that product shall be innovative in nature or provide a new technical solution to a problem prevailing in society. In front of the public by filing a patent application the invention disclosed for the registration of a patent.
What are the essential conditions which are to be fulfilled by the owner for patent registration?
For patent application three main criteria:
- Novelty: – It means that the invention should not be introduced in the market or even not have been made public. In the various judgment, the court said that innovations shall not be made public by the owner itself before applying for a patent.
- Inventive step: – The product or process shall be new or an innovative solution for the peoples of the society and in benefit with the needs of the customer.
- Industrial Applicability: – The product or process shall be in nature of business, or it shall manufacture the invention.
What is the need for patenting an innovation?
Licensing of a product or process is important for safeguarding the rights of the owner. There are the following needs for patenting an innovation: –
- Maintain healthy competition among the creators: – by registering a single product or process by an individual or a company. It encourages other persons to make, sell or distribute other products or process which is distinct from the older one. Therefore, other individuals also enjoy the dominant position in the market.
- Motivates the patent holder: – by providing special and separate recognition to the innovation and owner of the product or process in the form of a patent certificate.
- Patent increase profits: – by controlling the undue advantage of the innovated product or process the patent holder takes advantage of huge profits by making its dominant position in the separate or distinct nature of the business.
- Increase demand in the market: – innovation and technology attract the customer if; the product or process matches with the need of the society. As people in the society need change so when they get an opportunity they step into the market.
- Growth of the Country: – with the healthy competition, demand in the market, and increase in profits of the patent holder the GDP of the country boosts with the development of the Nation. (Government, 2019)
The patent system in India
|YEAR||LEGISLATION||AIM OF THE ACT|
|1856||THE ACT VI||PROTECTION OF INVENTION|
|1859||THE ACT XV||PATENT MONOPOLIES ARE CALLED EXCLUSIVE PRIVILEGES (MAKING, SELLING, USING INVENTIONS IN INDIA).|
|1872||THE PATTERNS & DESIGNS PROTECTION ACT.||PROTECT NOVELTY OF THE INVENTION.|
|1883||THE PROTECTION OF INVENTIONS ACT.||THREE MODIFICATIONS AS PER U.K. LAW.|
|1888||CONSOLIDATED AS THE INVENTIONS & DESIGNS ACT.||AMEND THE LAW RELATING TO INVENTION & DESIGN.|
|1911||THE INDIAN PATENTS & DESIGNS ACT.||PATENT ADMINISTRATION APPLICATION.|
|1999||PATENTS (AMENDMENT) ACT.||AMENDMENTS DONE.|
|2002||THE PATENTS (AMENDMENT) ACT.||AMENDMENTS DONE.|
|2005||THE PATENTS (AMENDMENT) ACT.||AMENDMENTS DONE.|
Patent Cooperation Treaty
The patent cooperation treaty is a contract between different states who are members of the World Intellectual Property Organization (WIPO). Currently, there are 193 member countries under WIPO the main aim of this organization is to protect the rights of the intellectual property holder from infringement. Patent cooperation treaty is signed between 153 parties on 19th June 1970 in Washington, United States (US) it is an international patent law treaty, it provides protection to the peoples of the states who are parties to the patent cooperation treaty.
Individuals, companies, firms, partnerships, and associations of persons can file a PCT application by following a unified procedure to protect their innovation from infringement in the form of producing, using, or selling its product or process by the other person without approval or license. By filing one application under an international patent law treaty the patent holder receives protection in the other states simultaneously who are the parties to the treaty.
The patent system in India in relation to Patent Cooperation Treaty
India joined with Paris Convention in December 1998 for the purpose to protect industrial property at the same time India joined the PCT Union. This decision resulted in truly beneficial in the development of the country as it opened a gate for entry of advanced technology. In the year 1999 India made 61 PIT applications. In a single financial year between 1999-2000 to 2000-2001, the PIT applications grown from 3% to 50%. This trend became double in the coming years in the financial year 2003-2004. In India, more than 4,000 PIT applications filed.
Many other PCT applicant companies from India during the same period are Ranbaxy Laboratories Ltd who filled a total of 27 applications and other was Dr. Reddy’s Laboratories Ltd who filled a total of 9 applications during the same period. There were other pharmaceutical companies from India like Orchid Chemicals & Pharmaceuticals Ltd, Biocon Ltd, Lupin Lab, and Sun Pharmaceutical Industries Ltd, that are also using the PCT system fruitfully. Thus, it is observed that after the signing of the Patent Cooperation Treaty, India takes it seriously as Indian Investors have started taking whole advantage of the PCT system and many of any other applications under the PCT system was from abroad. (NISCAIR, 2011)
Registration of innovation is an important step as it helps in the infringement of product or process. The patent system faces some challenges that need to be resolved that is; A patent is applicable only on the same name but not on a similar name shall be resolved by banning names with similar meanings. The second big challenge on patents that are registered under patent cooperation treaty security, is available in members countries not with every country who is members states under WIPO.
It is the fundamental right to provide equal opportunity to each & every citizen of the country under Article 14 of the Indian Constitution, 1950. Treaty helps in protecting the right of each & every patent holder against its innovation. Patent Cooperation Treaty is an international treaty among different states who are parties to the treaty according to this treaty applying PIT application in one state the patent holder gets protection from infringement in other states simultaneously. So, it helps in making business or trade relations among international states.
- Need for Patent- Department for Promotion of Industry and Internal Trade official website: https://dpiit.gov.in/
- Patent System in India- WIPO official Website: https://www.wipo.int/portal/en/index.html
- Patent system in India in relation of Patent Cooperation Treaty- Journal of IPR: http://nopr.niscair.res.in/bitstream/123456789/4895/1/JIPR%208%281%29%2050-57.pdf
- Recent challenges under patent system- The Times of India: https://timesofindia.indiatimes.com/defaultinterstitial.cms