INDIAN PATENTS ACT ON SOFT PROPERTY WORST

INTRODUCTION
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th
April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely
based on the recommendations of the Ayyangar Committee Report headed by Justice N.
Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents
with regard to inventions relating to drugs, medicines, food and chemicals.
Later, India became signatory to many international arrangements with an objective of
strengthening its patent law and coming in league with the modern world. One of the
significant steps towards achieving this objective was becoming the member of the Trade
Related Intellectual Property Rights (TRIPS) system. Significantly, India also became
signatory of the Paris Convention and the Patent Cooperation Treaty on 7th December 1998
and thereafter signed the Budapest Treaty on 17th December 2001.
HISTORY
Being a signatory to TRIPS, India was under a contractual obligation to amend its
Patents Act to comply with its provisions. India had to meet the first set of requirements on
1st January 1995 to give a pipeline protection till the country starts granting product patent.
On 26th March, 1999, Patents (Amendment) Act, 1999 came into force retrospective effect
from 1st January, 1995. The main amendments are as follows:

Section 5(2) was introduced which provides for filing of applications for patent in the
field of drugs, medicines and agro-chemicals. These applications were kept pending in
the mailbox or black box. This mailbox was to be opened on 1st January 2005.

Provision of Exclusive Marketing Rights (EMR) was brought in by way of Chapter

IV A. Thus, pipeline protection was provided for pharmaceutical and agro-chemical
manufacturers whose applications for product were lying in black box.

Section 39 was omitted from the Act, thereby enabling the Indian residents to file the
applications for in an outside India simultaneously.

Chapter II (A) was inserted in the Indian Patent Rules dealing with International
Applications under PCT.
The second phase of amendment was brought in by the Patents (Amendment) Act,

2002 which came into force on 20th May 2003. The main features of the amendments
included:

Term of patent was extended from 14 to 20 years, wherein the date of patent was the
date of filing of complete specification. Also the difference in term of a drug/food
patent and other patent was removed.

The definition of "invention" was made in conformity with the provisions of TRIPS
Agreement by introducing the concept of inventive step, thereby enlarging the scope
of invention.

Deferred examination system was introduced.

Introdutcion of the provision of publication of application after 18 months from the

date of filing thereby bringing India at par with the rest of the world.

Microorganisms became patentable, whereas inventions relating to traditional

knowledge were included in the list of "what are not inventions".

The concept of unity of invention in accordance with EPC and PCT.

Section 39 was reintroduced thereby prohibiting the Indian residents to apply abroad
without prior permission or first filing in India.
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Provisions of Appellate Board were brought in by inserting section 116. All appeals to
the decision of the Controller would be appealable before the Appellate Board. The
Head Quarter of the Appeallate Board is to be in Chennai.

Section 117 provided for Bolar provision for the benefit of agrochemical and
pharmaceutical industry.
The third and final amendment to the Patents Act, 1970 came by way of Patents

(Amendment) Ordinance, 2004, which was later replaced by The Patent (Amendment) Act,
2005, and Patents (Amendment) Rules, 2006 with retrospective effect from 1st January, 2005.
With the third amendment India met with the international obligations under the TRIPS.
Significant achievements of this amendment were:

Deletion of section 5, opening of mailbox and grant of product patents. Thus this
amendment led to the dawn of the "product patent regime" in India.

Abolition of Exclusive Marketing Rights (EMR).

CURRENT POSITION
The present Indian position in respect of patent law is governed by the provisions of
the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 (hereinafter
referred to as the Act) and Patents Acts Rules, 2006 (hereinafter referred to as the Rules)
The Head Patent Office is located at Kolkata and its branch offices are located at
Delhi, Mumbai and Chennai. Patent system in India is administered by the Controller General
of Patents, Designs, Trademarks and Geographical Indications. Each office has its own
territorial jurisdiction for receiving patent applications and is empowered to deal with all
sections of Patent Act. "New invention" 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 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.

Thus, according to this definition of new invention, Act talks of absolute novelty, i.e.
the invention should have neither been used anywhere in the world nor published in any part
of the world. However, the later sections of the act for the purpose of anticipation and
opposition proceedings deal with the relative novelty i.e. not used in India and not published
in any part of the world. Further, entire Act refers to the word invention and not new
invention. Therefore, for all purposes relative novelty is the criterion.

"Inventive Step" is defined under Section 2 (1) (ja) of the "Act". Prior to the
Amendment of 2005, inventive step meant a feature that makes the invention not obvious to a
person skilled in the art. The new Act of 2005 defined inventive step more precisely.
"Inventive step means a feature of an invention that involves technical advance as compare to
the existing knowledge or having economic significance or both and that makes the invention
not obvious to a person skilled in the art."
Thus, in addition to the non-obviousness criterion two other conditions were added
i.e. it should also involve technical advancement as compared to the existing knowledge or
having economic significance, or both, in addition to being non-obvious. The terms
technical advance and economic significance have not been defined clearly and are
unambiguous. It cannot be left to presumption economic significance is synonymous to the
phrase capable of industrial application in section 2 (1)(ac) or in footnote 5 to Article 27.
The meaning of the phrase technical advance cannot be presumed either, in absence of a
specific definition or reference. The Controller would then dispose off the report ordinarily
within one month from the date of receipt of such report and issue the first examination
report. The first examination report is issued ordinarily within 6 months from the date of the
request for the examination or 6 months from the date of publication whichever is later.
Time for putting the application in order for grant under section 21 is twelve months
from the date of receipt of first examination report. No extension of time is permissible.
Therefore, it is necessary to comply with all the requirements and objections raised by the
patent office within twelve months from the date of first examination report. Once all the
requirements are met with and the examiner is satisfied with the arguments and amendments
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of the applicant, the application proceeds for grant. The grant is notified in the Patent Journal,
published weekly by the Indian patent office. The post grant opposition proceedings may
follow within one year from the date of said notification.
PRE-GRANT OPPOSITION PROCEDURE
The pre grant representation may be filed by any person within six months of date of
publication of the application or before the grant of the patent whichever is later. It may be
noted that the Controller is empowered to grant the patent soon after six months from date of
publication.

CONCLUSION
The applicant may file his statement and evidence in support of his application within
three months from the date of the notice. Thereafter, after the Controller has considered the
submission and the representations made, the the patent is either granted or rejected. The
acceptance may be with or without amendment to the specification. The decision is issued
ordinarily within one month from the date of the completion of the proceedings. It may be
noted that no fee is required to be paid for entering into pre-grant opposition. An appeal can
be filed in the appellate board against such decision.

REFERENCES

http://www.mondaq.com/india/x/54494/Patent/Patent+Law+in+India
http://www.business-standard.com/article/economy-policy/protecting-patents-india-

worst-in-world-114012900371_1.html
http://www.invntree.com/blogs/are-software-inventions-patentable-india
http://economictimes.indiatimes.com/tech/software/indian-patent-office-puts-on-hold-

guidelines-for-patenting-software/articleshow/50275687.cms