Patent is as similar to Trademarks, copyright, design and geographical
indications, Patent is also an Intellectual Property which is protected under the
Law and the rightful owner of the Patent can claim rights and authorities under
the Law for a limited period. In India, the Law of Patent is primarily governed by
the Patent Act of 1970.
The word “Patent” refers to a monopoly right over an invention. Not all
inventions are patentable nor it is essential to protect inventions solely through
patent. The final product that results from an invention may be protected
through other forms of intellectual property rights. The statutory definition of
Patent under the Patent Act as a Patent for any invention granted under the Act.
Object of Grant of Patent
The object of grant of Patent is to encourage research and development and
innovation. The Supreme Court in the case of Bishwanath Prasad Radhey
Shyam v. Hindustan Metal Industries, enumerated the object of Patent
Law as under:
The subject of Patent Law is to encourage scientific research, new technology
and industrial progress. Grant of exclusive privilege to own, use or sell the
method or the product patented for limited period, stimulates new inventions of
commercial utility. The price of the grant of 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.
The core objective of the patent law is to promote the progress of
Science and useful arts. It can be listed as:
1. To encourage inventor: If a person puts efforts and resources in
invention something that can be patented, he should have a provision that
stops others from copying his work without his permission. If it happens
he would get motivated to research further.
2. To protect Inventors’ interest: By protecting inventions the Law also
protects the goodwill and financial gains of the inventor. For e.g. if Patents
are not provided anyone can copy the formula of drugs and can sell it at
cheaper rates. This will affect the goodwill of the inventor in case the drug
does not work, and the inventor will also lose his market that will result in
3. Encourage Research and Development: If an inventor gets recognition
for his work and at the same time his work is protected also, he may get
motivated for further research. This will also motivate others to go in the
field of research. All this will finally result in the technical and financial
growth of the society.
4. To ensure Fai trade practices: By providing protection and monopoly
rights the law indirectly stimulates fair trade practices. If a businessman
knows that he will be facing legal action for copying others’ process or
product, he may not try to do so. This will help in controlling unfair
VALUE OF PATENT
The costs of preparing and filing a patent application, prosecuting it until grant
and maintaining the patent vary from one jurisdiction to another, and may also
be dependent upon the type and complexity of the invention, and on the type of
RIGHTS IN A PATENT
Patent registrations confer on the rightful owner a right capable of protection
under the Act i.e. the right to exclude others from using the invention for a
limited period of time. The monopoly over patented right can be exercised by
the owner for a period of 20 years after which it is open to exploitation by
Patent confers the right to manufacture, use, offer for sale, sell or import the
invention for the prescribed period.
TIME PERIOD FOR WHICH PATENT IS GRANTED
Initially, the Act provided for a shorter term of protection for medicine or drug
substances. However, vide the Amendment Act of 2005 uniform period of 20
years was provided for all the Patents. Thus, once the prescribed period of 20
years is over, then any person can exploit the patented invention. Here it would
be relevant to mention that similar to a trademark even the term of a patent
begins from the date of application of patent.
REQUIREMENTS FOR GRANT OF PATENT
1. The application for Patent shall be made at the Indian Patent Office.
2. Any person i.e. Indian or a Foreigner, individual, company or the
Government can file a Patent Application.
The person applying for Patent shall be the true and first inventor of
the invention proposed to be patented.
a) The patent application can also be made jointly.
b) The patent application shall primarily disclose the best method of
performing the invention known to the applicant for which he is entitled
to claim protection.
c) The applicant shall also define the scope of invention.
The invention desired to be patented shall be- new, should involve an
inventive step and must be capable of industrial application.
A patent application can be made for a single invention only.
An international application made under the PCT (Patent Co-operation
Treaty) designating India shall be deemed as an application made under
the Patents Act with the priority date accruing from the date of the
international filing date accorded under the PCT.
INVENTION UNDER THE PATENT ACT
The Act under Section 2(1)(j) defines “invention” as a new product or process
involving an inventive step capable of industrial application.
The term “industrial application” refers to capable of industrial application in
relation to an invention means that the invention is capable of being made or
used in an industry. One of the pre-requisite of invention is that it should be new
i.e. the invention proposed to be patented has not been in the public domain or
that it does not form part of the state of the art.
Under the Patent Act, both processes and products are entitled to qualify as
inventions if they are new, involve an inventive step and are capable of
REQUIREMENTS TO QUALIFY AS INVENTION
1. The Invention must be new;
2. Invention must involve an inventive step;
3. The Invention must be capable of industrial application or utility;
4. The Invention shouldn’t come under the inventions which are not
patentable under section 3 and 4 of the Patent Act, 1970.
INVENTIONS THAT ARE NOT PATENTABLE
Non-patentable inventions are enumerated under section 3 and 4 of the Patent
Act. Such inventions are delineated below:
Any Inventions which is frivolous or which claims obviously contrary to
well established natural laws is not patentable.
Inventions which are contrary to public order or morality is not
An idea or discovery cannot be a subject matter of a patent application.
Inventions pertaining to known substances and known processes are not
patentable i.e. mere discovery of a new form of a known substance which
does enhance the efficacy of that substance is not patentable.
An invention obtained through a mere admixture or arrangement is nor
A method of agriculture or horticulture cannot be subject matter of
A process involving medical treatment of human and animals or to
increase their economic value cannot be subject matter of a patent.
Plants and animals in whole or in part are not patentable.
A mathematical or business method or a computer program per se or
algorithms is excluded from patent protection.
Matters that are subject matter of copyright protection like literary,
dramatic, artistic work is not patentable.
Any scheme or rule.
Topography of integrated circuits.
Inventions relating to atomic energy.
PROCESS PATENT AND PRODUCT PATENT
Patents contain claims, usually multiple claims, and they can be either process
claims or product claims. One patent can contain both kinds of claims.
A process claim describes a process; that is, it describes a way of doing
something. That something could be how to make a product, or how to use a
product, etc., pretty much some set of steps or actions.
A product claim describes a product, like a tool, a new type of material, or a
system of devices that work together. Generally any kind of tangible thing.
There are also “product by process” claims. These describe a product in terms of
the steps required to make it. Think of “a pizza made according to this recipe.
SURRENDER AND REVOCATION OF PATENTS
Sections 63 to 66 deal with the subject of surrender and revocation of patents.
Surrender of Patents (s. 63). A patentee may, at any time by giving notice to
the controller, offer to surrender his patent. Where such an offer is made, the
controller shall advertise the offer, and also notify every person whose name
appears in the Register as having an interest in the patent. Any person
interested may give notice of opposition to the surrender. The controller, after
completing the procedure and hearing the parties may accept the offer and
revoke the patent.
Revocation of patents (s. 64). The high court may revoke the patent (i) on a
petition by (a) any person interested; or (b) the central government, or (ii) on a
counter claim in a suit for infringement of the patent. Following are the grounds
on which a patent may be revoked;
i. that the invention claimed in any claim of complete specification was
claimed already in a valid claim of the earlier priority date contained in
complete specification of another patent granted in India;
ii. that the patent was granted on an application of the person not entitled
to apply for the patent;
iii. that the patent was obtained wrongfully in contravention of the rights
of the petitioner;
iv. that the claim of the complete specification is not an invention within
the meaning of the Act;
v. that the invention as claimed, is not new having regard to what was
publicly known or used in India or elsewhere before the expiry date of
vi. that the invention is obvious or does not involve any inventive step;
vii. that the invention is not useful;
viii. that the complete specification does not sufficiently and fairly describe
the invention and the method by which it is to be performed;
ix. that the scope of the claim of the complete specification is not
sufficiently and clearly defined or is not fairly based on the matter
disclosed in the specification;
x. that the patent was obtained on a false suggestion or representation;
xi. that the subject of the claim is not patentable under the Act;
xii. that the invention claim was secretly used in India;
xiii. that the claimed invention failed to disclose the requisite information
and undertaking regarding the foreign application;
xiv. that the applicant has contravened any direction for secrecy passed by
controller or the central government;
xv. that the leave to amend the complete specification was obtained by
xvi. that the revocation which the central government consider is necessary
in the interest of security of India;
Also a patent may be revoked by the High Court on the petition of the Central
Government if the High Court is satisfied that the patentee has without
reasonable cause failed to comply with the request of the Central Government to
make, use or exercise the patented invention for the purposes of government.
Revocation of patent on directions from Central Government in cases
relating to atomic energy (s. 65). Where the Central Government is satisfied
that a patent is for an invention relating to atomic energy for which no patent
can be granted, then it may direct the controller to revoke the patent. Then the
controller may revoke the patent.
Revocation of patent in public interest (s. 66). Where the Central
Government is of opinion that patent or the mode in which it is exercised is
mischievous to the state or generally prejudicial to the public, it may make a
declaration to that effect in the official gazette. It shall give an opportunity to
the patentee to be heard before making such a declaration. Then the patent
shall be deemed to be revoked.
INFRINGEMENT OF PATENT
Infringement of Patent primarily refers to intrusion or violation of the rights of
the rights of a patentee against which has statutory rights under the Act.
The Factor that are essential in determining infringement of a Patent are as
1. While determining infringement it has to be assessed whether the
infringing activity fell within the scope of the invention. Thus, the
infringement has to be determined with regard to what has been
claimed as invention under the Patent Act by applying the principles
or standards of construction.
2. To determine whether the infringing activity violated any statutory
rights conferred to the Patentee under the Act. In this respect
reference can be made to section 48 of the Act which enumerates
the rights of the Patentee with respect to a product patent and
3. To determine the infringer i.e. the person liable for the
4. To determine whether the infringing act fell within the acts which do
not amount to infringement under the Patents Act i.e. excluded acts
of Government use, use of patented product or process for
experiment or research, import of medicine or drug by Government
and patents in foreign vessels and aircrafts.