Intellectual Property Rights: -
Everything that is novel (new) and created by humans, whether it be works
of art, literature, technology, or science, is considered intellectual property
(IP). Intellectual Property today encompasses a far broader range of assets
than just patents, trademarks, and industrial designs did in the past. The
term "intellectual property rights" (IPRs) describes the set of legal
protections afforded to an innovator or creator to use their work for a set
amount of time. For a certain time, the creator or inventor, or their assignee,
has the sole right to make full use of the invention or production because of
these legal rights.
Some ways in which intellectual property rights (IPRs) support technological
development are:
1. They provide a proper system to deal with problems like piracy, illegal
use, and infringement.
2. Since almost all types of intellectual property are published (except
trade secrets), they give the public access to a large amount of
knowledge.
IP protection can be taken for many types of intellectual work, including:
(i) Patents.
(ii) Industrial designs, which include features such as shape,
arrangement, surface patterns, composition of lines, or colors
applied to an object—whether it is 2-dimensional like cloth or
3-dimensional like a toothbrush.
(iii) Trademarks, which include any symbol, word, or design used
to identify the origin, manufacturer, or seller of a product or
service. Trademarks can be bought, sold, or licensed. A
trademark has no meaning by itself; it gets its value only from
the goods or services it represents.
(iv) Works of literature, music, theater, art, cinema, audio
recordings, and computer programs Are all encompassed
under copyright laws, which pertain to the material
manifestation of Ideas.
(v) The term “geographical indication” refers to any name or
symbol used on a product that is associated with a certain
place or region of origin. A geographical indication is a mark
of Quality, manufactured using traditional methods, or well-
respected for its geographical Origin that guarantees a
product has particular attributes.
The Patents Act, 1970
The Patents Act, 1970 is the main law in India that deals with patents—legal
rights given to inventors for their new inventions. This Act provides the rules
for how a patent is granted, what can be patented, how long the protection
lasts, and what rights the inventor gets.
The Act aims to encourage new inventions in India by giving inventors
exclusive rights to make, use, and sell their invention for a limited period.
Key Features (Simplified):
The Act allows patents only for new, useful, and non-obvious inventions.
Once a patent is granted, the inventor gets the exclusive right to use the
invention for 20 years.
After 20 years, the invention becomes public property, meaning anyone can
use it.
The Act also explains what cannot be patented (for example, discoveries,
plants and animals, and scientific principles).
The Act provides rules for filing a patent application, examination, grant,
renewal, and cancellation.
It also contains rules to stop infringement (illegal use of a patented
invention) and provides punishments or remedies.
The Patents Act, 1970 has been updated many times (especially in 1999,
2002, and 2005) to match international standards like TRIPS.
Protectable Subject Matter – Patentable Invention
Under The Patents Act, 1970, not every idea or discovery can be patented.
Only certain types of inventions are considered patentable subject matter. A
patentable invention must satisfy three major conditions:
1. Novelty (Newness)
The invention must be new and should not have been published, used, or
known anywhere in the world before the date of filing.
2. Inventive Step (Non-obviousness)
The invention must involve a technical advance or a new feature that is not
obvious to a person skilled in that field.
3. Industrial Applicability (Usefulness)
The invention must be capable of being made, used, or applied in industry.
Examples of Protectable Subject Matter:
New machines
New chemical compounds or pharmaceutical products
New manufacturing processes
New technological devices
New computer-related inventions (with technical effect)
Non-Patentable Subject Matter (Just to Mention):
Certain things cannot be patented, such as:
Scientific principles, laws of nature
Mathematical methods or algorithms
Plants, animals, and natural substances
Business methods
Methods of treatment for humans or animals
Procedure for Obtaining a Patent
The process of getting a patent in India involves several steps:
1. Idea Development & Patent Search
The inventor prepares the invention and checks whether it is already
patented by doing a prior art search.
2. Filing the Patent Application
A patent application is filed in the Patent Office using Form 1 along with a
provisional or complete specification (Form 2).
Provisional specification is filed if the invention is not fully developed.
Complete specification includes full details and claims.
3. Publication of the Application
The patent application is published in the Patent Office Journal after 18
months from the date of filing.
(Early publication can also be requested.)
4. Examination of Application
A request for examination (Form 18) must be filed.
A patent examiner checks:
Novelty
Inventive step
Industrial application
Whether it is patentable subject matter
A report called First Examination Report (FER) is issued.
5. Response to Examination Report
The inventor must reply to the objections raised in the FER and make
necessary changes.
This step is called patent prosecution.
6. Grant of Patent
If all requirements are fulfilled, the Patent Office grants the patent, and it is
notified in the Patent Journal.
7. Renewal / Maintenance
A patent is valid for 20 years from the date of filing.
Renewal fees must be paid every year after the patent is granted.
Provisional and Complete Specifications, Rights Conferred on a
Patentee, Transfer of Patent, Revocation and Surrender of Patents
Under the Patents Act, 1970, the specification is the most important part of a
patent application because it describes the invention and defines the scope
of protection.
1. Provisional Specification
A provisional specification is filed when the invention is not fully developed
or finalized.
It helps the inventor secure an early filing date, which is very important for
priority.
Features (Simple):
Acts as a temporary document.
Contains basic description of the invention.
Does not contain claims.
Gives the inventor 12 months to file the complete specification.
Helps protect the idea at an early stage.
2. Complete Specification
A complete specification is the final and detailed document of the invention.
It must be filed within 12 months of the provisional specification.
Features (Simple):
Contains full description of the invention.
Must include claims, which define the exact legal protection.
Includes drawings, examples, and best method of performing the invention.
Acts as the legal basis for granting the patent.
3. Rights Conferred on a Patentee
Once a patent is granted, the patentee gets exclusive rights for 20 years.
Main rights:
Right to make, use, sell, and import the patented invention.
Right to prevent others from making, using, selling, or importing the
invention without permission.
Right to license the patent to others and earn royalty.
Right to assign (transfer) the patent to another person.
Right to sue for infringement and claim damages.
These rights exist only within the territory of India and for the duration of the
patent.
4. Transfer of Patent
A patent is considered property, so it can be transferred legally.
Methods of transfer:
(i) Assignment
The patentee permanently transfers some or all rights to another person.
This can be:
Full assignment (entire patent)
Partial assignment (specific rights)
(ii) Licensing
The patentee allows another person to use the invention for specific
purposes in return for payment or royalty.
Ownership remains with the patentee.
All assignments and licenses must be in writing and registered with the
Patent Office.
5. Revocation of Patent
A granted patent can be revoked (cancelled) under certain conditions.
Revocation may happen:
Grounds for Revocation:
The invention is not new or lacks inventive step.
Patent was obtained by fraud or misrepresentation.
The invention is not patentable under the Act.
The patentee fails to disclose required information.
The invention is against public order, morality, or public health.
Non-payment of renewal fees.
Revocation can be done by:
The High Court,
The Central Government, or
A counterclaim in an infringement suit.
6. Surrender of Patent
The patentee may voluntarily give up (surrender) the patent when they no
longer want the rights or cannot maintain it.
Process:
Patentee submits a written request to the Controller.
The Controller publishes the request.
If no objection is raised or after hearing objections, the patent is surrendered
and removed from the register.
Infringement of Patents
Patent infringement occurs when any person, without the permission of the
patentee, performs any act that only the patentee has the right to do.
This includes:
Making the patented product
Using the patented invention
Selling or offering it for sale
Importing the patented product
Using a patented process without authorization
Infringement can be:
Direct infringement – directly copying or using the invention
Indirect infringement – helping or encouraging others to infringe
Infringement is considered illegal because it violates the exclusive rights
given to the patentee.
Action for Infringement
When a patent is infringed, the patentee can file a legal case in a District
Court or Infringemen
Main remedies available to the patentee:
1. Injunction
A court order that stops the infringer from continuing the illegal act.
2. Damages
Compensation for the loss suffered due to infringement.
3. Account of profits
The court may order the infringer to hand over the profits earned from using
the patented invention.
4. Seizure and destruction
The court may allow seizure or destruction of infringing goods, materials, or
equipment.
Defences available to the accused:
Patent is invalid
No infringement occurred
Use was experimental or for research
Patent has expired.
Action for infringement helps protect the legal rights of inventors.
Patent Agents
A patent agent is a qualified professional authorized by law to prepare, file,
and prosecute patent applications on behalf of inventors.
Eligibility to become a patent agent:
Must be an Indian citizen
Must have a degree in science, engineering, or technology
Must pass the Patent Agent Examination conducted by the Indian Patent
Office
Functions of a patent agent:
Drafting provisional and complete specifications
Filing patent applications
Communicating with the Controller of Patents
Handling patent prosecution (replying to FERs, objections)
Managing assignments, licensing, or renewal of patents
Advising clients on patentability and infringement issues
Patent agents play a key role in the patent system by helping inventors
secure their rights correctly.
Patent in Computer Programs
Under the Patents Act, 1970, computer programs per se (as such) are not
patentable.
They are treated as non-patentable subject matter under Section 3(k).
However, computer-related inventions can be patented if:
1. The software produces a technical effect
Examples: improved speed, better memory management, enhanced security.
2. The invention has a technical contribution
Examples: improved hardware performance, new data processing technique.
3. The invention is linked with hardware
A computer program working with a specific device or machine may qualify
for a patent.
Not Patentable:
Pure software
Algorithms
Business methods
Mathematical methods
Patentable (if technical effect is shown):
Embedded software in machines
Software controlling industrial processes
Computer programs enhancing hardware efficiency
Thus, software alone cannot be patented in India, but software + technical
application can qualify.
Patent Protection for Microorganisms
Under the Patents Act, 1970, most living beings like plants and animals
(except microorganisms) are not patentable. However, microorganisms are
an exception and can be patented in India, provided certain conditions are
fulfilled. This became possible after India amended the Patent Act in 2002 to
comply with TRIPS Agreement.
Why Microorganisms Can Be Patented?
Microorganisms are allowed to be patented because:
They can be man-made or genetically modified.
They can be used for industrial, medical, or agricultural applications.
They fulfill the basic requirements of patentability:
Novelty
Inventive step
Industrial applicability
Examples:
Genetically modified bacteria producing insulin, microorganisms used for
bioremediation, new strains used in antibiotics.
Conditions for Patentability of Microorganisms
A microorganism can be patented if:
1. It is new (not previously known or used).
It must not be found already in nature unless it has been genetically
modified or significantly altered.
2. It has an inventive step.
There must be a technical improvement or modification, such as improved
growth, better enzyme production, or new metabolic properties.
3. It has industrial application.
The invention must be useful in:
Pharmaceuticals
Agriculture
Biotechnology
Environmental treatment (e.g., oil spill cleaning bacteria)
Deposit of Microorganisms (Mandatory Requirement)
Because microorganisms cannot be described fully on paper, the Patents Act
requires the inventor to deposit the microorganism in an internationally
recognized depository under the Budapest Treaty.
In India, the recognized depository is:
Microbial Type Culture Collection (MTCC), Chandigarh
The deposit acts as proof of the invention and must be made before filing or
within the prescribed time.
Non-Patentable Microorganism-Related Inventions
The following cannot be patented:
Naturally occurring microorganisms without modification
Biological processes for producing plants/animals
Microorganisms harmful to public health
Mere discovery of a living thing occurring in nature
Only modified or newly created microorganisms are patentable.
Examples of Patentable Microorganism Inventions
Bacteria modified to produce human insulin
Microorganisms engineered to degrade oil spills
Yeast strains with improved fermentation
Microbes used to produce novel antibiotics