Introduction

Patent is defined in section 2(m) of the act. Patent is a grant for an invention by the Government
to the inventor in exchange for full disclosure of the invention. A patent is an exclusive right
granted by law to applicants / assignees to make use of and exploit their inventions for a limited
period of time (generally 20 years from filing). The patent holder has the legal right to exclude
others from commercially exploiting his invention for the duration of this period. In return for
exclusive rights, the applicant is obliged to disclose the invention to the public in a manner that
enables others, skilled in the art, to replicate the invention. The patent system is designed to
balance the interests of applicants / assignees (exclusive rights) and the interests of society
(disclosure of invention).

Background
The history of patents stretches back over two millennia, with roots traced as far back as 500
B.C. in ancient Greece. The concept of exclusive rights for inventors finds its earliest
manifestation in culinary arts, where the city known for its gastronomy granted exclusive sale
rights to confectioners who invented delectable dishes. This practice, initially confined to Greek
cities, gradually expanded to encompass various crafts and goods, known then as 'monopoly
privileges.
Throughout history, the purpose of patent-like privileges varied. In the 14th century, kings and
rulers granted exclusive property rights to inventors, aiming at different goals. Venice, in the
15th century, systematically used monopoly privileges to encourage invention, considering
utility and novelty crucial for grant eligibility. Requirements often included putting the invention
into commercial use within a specified timeframe.
By the 16th century, German princes also began awarding inventors, emphasizing the utility and
novelty of their creations. In the American colonies, early patent laws aimed to stimulate
industrial growth by providing foreign manufacturers with protected domestic markets.
However, in England, by the late 15th century, the monarchy started employing monopoly
privileges more for rewarding court favorites and controlling industries rather than encouraging
inventions. This led to the enactment of the Statute of Monopolies in 1623, which distinguished
inventor patents from other monopolies, outlawing privileges except for true inventors.
In England during the following centuries, inventor patents became of national importance. The
concept spread across Europe and North America despite facing opposition.
India's patent system traces its origin to the mid-19th century, with the Act of 1856 granting
exclusive privileges to inventors. However, by the time of Independence, the Patents and
Designs Act of 1911 favored foreigners over Indians and did little to promote scientific research
and industrialization.
To rectify this, in 1949, a committee under Justice (Dr.) Bakshi Tek Chand was formed to review
the 1911 Act. Its recommendations led to amendments in 1950 and 1952, focusing on
compulsory licensing and revocation of patents, particularly in essential sectors like food,
medicine, and surgical devices.
In 1957, a comprehensive review under Justice N. Rajagopala Ayyangar led to a complete
overhaul of India's patent law. His report, submitted in 1959, laid the foundation for the Patents
Act of 1970, which came into force in 1972, replacing the outdated 1911 Act. This new law
aimed to serve contemporary needs, focusing on patents for chemical inventions, food, and
medicine, among others.
 Patent act, 1970
The Patents Act of 1970 played a key role in India's industrial progress by encouraging
inventions and making sure they get used commercially quickly. It stressed that patents shouldn't
just give one person complete control over making and selling patented items, but should also
foster new ideas and help the economy grow. This idea was shown in rules like compulsory
licensing and limiting product patents to specific areas like chemicals, leaving out important
fields like agriculture and horticulture.
However, India had to make changes to the Patents Act to meet the requirements of the TRIPS
agreement as part of its commitments during the Uruguay Round of GATT negotiations. In 1994,
an ordinance introduced amendments to the Act, which were later replaced by the Patents
(Amendment) Act of 1999. This was meant to allow people to apply for patents on products in
areas like pharmaceuticals and agrochemicals, even though their examination was put off until
2004.
Further amendments in 2002 increased the patent term to 20 years for all technologies, shifted
the burden of proof, and introduced provisions for compulsory licenses. These changes came into
effect in 2003 with the introduction of new Patent Rules.
The most significant amendment occurred in 2005 through the Patents (Amendment) Act,
replacing the earlier ordinance, allowing product patents across all technological fields. This
amendment aimed to align India's patent regime with international standards.
The Patents Rules, accompanying the Act, underwent several revisions, with the latest
amendments made effective in 2006. These rules govern patent administration, prescribe fees,
specify forms required for various activities, and outline costs for proceedings before the
Controller.

Salient features of patent act

There are certain features of patent act as follows:-
1. Exclusive Rights: A patent grants the inventor exclusive rights to make, use, and sell
their invention for a limited period, typically 20 years from the filing date of the patent
application.
2. Legal Protection: It provides legal protection against others from making, using, selling,
or importing the patented invention without the inventor's permission.
3. Territorial: Patent rights are typically limited to the country or region where the patent is
granted. Separate applications are needed for protection in different countries.
4. Limited Duration: Patents have a finite duration, after which the invention enters the
public domain, allowing others to use and build upon it freely.
5. Public Disclosure: In exchange for the exclusive rights, inventors must disclose their
invention to the public in a patent application, contributing to the collective knowledge
base.
6. Encouragement of Innovation: Patents incentivize innovation by rewarding inventors
with exclusive rights, providing a financial incentive to invest in research and
development.
7. Property Rights: Patents are considered intellectual property rights, akin to physical
property, and can be bought, sold, licensed, or transferred like any other form of property.
8. Subject Matter: Patents can cover a wide range of inventions, including products,
processes, methods, and compositions of matter provided they meet the criteria of
novelty, utility, and non-obviousness.
 INVENTIONS NOT PATENTABLE
Under section 3 of the Patents Act, 1970, the following are not inventions and hence are not
considered to be patentable.
(a) Something that's obviously against established laws or is just silly isn't considered an
invention.
b) An invention whose main use or commercialization would go against public order, morality,
or would harm human, animal, or plant life, or the environment, isn't considered an invention.
c) Just finding out a scientific principle, coming up with a theory, or discovering something
already existing in nature, like a living thing or a substance, isn't considered an invention.
d) Just finding a new version of something already known that doesn't make it work better, or
discovering a new property or use for something already known, or just using a known process,
machine, or tool, isn't considered an invention unless it creates something new or uses something
new.
e) Just mixing things together without changing their properties or making a process to do that
isn't considered an invention.
f) Just arranging or rearranging known devices in a known way isn't considered an invention.
h) Ways of farming or gardening aren't considered inventions.
i) Processes for treating humans or animals for health reasons or to make them healthier or more
valuable aren't considered inventions.
j) Plants and animals, except for microorganisms, and processes for making or breeding them
aren't considered inventions.
k) Methods for doing math, business, or computer programming, or algorithms, aren't considered
inventions and can't be patented.
l) Works of literature, drama, music, art, or any other creative works, including movies and TV
shows, aren't considered inventions.
m) Just coming up with a plan or method to do a mental task or play a game isn't considered an
invention.
n) Just presenting information isn't considered an invention.
o) The layout of integrated circuits isn't considered an invention.
p) Anything that's just common knowledge, or a mix of known things, isn't considered an
invention.
Case laws
1. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries
In this case, the Supreme Court of India examined the objectives and principles
underlying the Indian Patents Act, 1970. The court emphasized that the purpose of patent
law is to encourage scientific research, promote new technology, and stimulate industrial
progress. The court highlighted that the grant of exclusive privilege under a patent
encourages inventors by providing them with recognition for their creativity and material
reward for their inventions. Additionally, the court underscored the importance of
disclosing inventions to the public, as it enriches the collective knowledge base and
fosters further technological development. This case provides valuable insights into the
nature and intent of the Indian Patents Act, 1970, and its role in promoting innovation
and technological advancement in India.

2. Novartis AG v. Union of India & Others

In this landmark case, the Supreme Court of India dealt with the patentability of
Novartis' cancer drug, Glivec (imatinib mesylate). The court upheld the rejection of
Novartis' patent application, emphasizing the stricter criteria for patenting under section
3(d) of the Patents Act. The judgment clarified that mere incremental improvements or
modifications of known substances may not meet the threshold of patentability unless
they demonstrate significantly enhanced efficacy.

3. F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd.)]

This case involved a patent dispute between Roche and Cipla over the cancer drug
Erlotinib. The Delhi High Court ruled in favor of Roche, holding that Cipla's generic
version of Erlotinib infringed Roche's patent rights. The case underscored the importance
of patent protection in the pharmaceutical industry and highlighted the significance of
enforcing intellectual property rights.

4. Bayer Corporation v. Union of India & Others

In this case, Bayer challenged the grant of a compulsory license to Natco Pharma for its
cancer drug Sorafenib Tosylate. The Controller of Patents issued the compulsory license
under section 84 of the Patents Act, citing Bayer's failure to make the drug available at an
affordable price. The case raised important questions about access to essential medicines
and the balance between patent rights and public health.
Duration of patent
Section 53 of the Patents Act, as revised in 2002, states that patents granted after this amendment
and those still valid at its commencement will have duration of twenty years from the date of
application.
If the renewal fee for a patent isn't paid within the set period or any extended time, the patent
becomes invalid. Once the patent term expires or if renewal fees aren't paid, the patent no longer
provides protection for its subject matter.
Rule 80 explains that renewal fees, as listed in the First Schedule, need to be paid by the end of
the second year from the patent's date and then every following year. These fees must be paid to
the patent office before the end of each relevant year. Sub-rule (1A), added in 2005, and allows
for a six-month extension to pay renewal fees upon request using Form 4 and payment of the
specified fee. When paying the renewal fee, it's crucial to include the patent number, date, and
the applicable year. Additionally, it's possible to pay renewal fees for several years in advance.
 Concerning authority under patent act
Controller is regarded as overall supervisor of Delhi, Chennai, Kolkata and Mumbai. Section 51
of the act talks about power of controller.
(1) If there are multiple people listed as owners of a patent, the Controller can, upon receiving a
request in the prescribed manner from any of these individuals, issue instructions regarding the
sale or lease of the patent, granting licenses under the patent, or exercising any rights under
section 50, as considered appropriate.
(2) If any individual listed as an owner of a patent fails to carry out any required actions outlined
in instructions issued under this section within fourteen days of being asked in writing by another
listed owner, the Controller, upon receiving a request in the prescribed manner from the
requesting party, may issue instructions authorizing another person to carry out the required
actions on behalf of the defaulting party.
(3) Before issuing any instructions as per a request under this section, the Controller shall
provide an opportunity to be heard:
(a) In the case of a request under subsection (1), to the other individual or individuals listed as
owners of the patent;
(b) In the case of a request under subsection (2), to the defaulting individual.
(4) Instructions under this section shall not affect the shared rights or obligations of trustees or
the legal representatives of a deceased individual, or their rights or obligations arising from
agreements between individuals listed as owners of the patent.
Scope for protection of patent
- If there are several owners of a patent:
- The Controller can receive a request from any owner to:
- Sell or lease the patent,
- Grant licenses for it, or
- Exercise any rights under section 50.
- If one owner doesn't fulfill their duties within fourteen days of a written request from another
owner:
- The Controller, upon receiving a request from the asking party, can authorize someone else to
do the required tasks.
- Before giving any instructions:
- The Controller must listen to:
- Other owners, if it's about the first case, or
- The defaulting owner, if it's about the second case.
- These instructions don't change:
- Trustees' or deceased owners' responsibilities, or
- Any agreements between the patent owners.
 Ground for opposition of patent
When a patent application has been made public but the patent hasn't been granted yet, anyone
can submit a written objection to the Controller against granting the patent for various reasons:
(a) If the applicant or someone related to them got the invention from the person objecting or
someone related to them.
(b) If the invention claimed in the patent application was made public before the priority date,
either through a patent application filed in India after January 1, 1912, or in any document in
India or elsewhere. However, this doesn't apply if the publication doesn't count as anticipation
under specific sections of the law.
(c) If the invention claimed in the patent application was already claimed in an earlier patent
application filed in India.
(d) If the invention claimed in the patent application was already publicly known or used in India
before the priority date.
(e) If the invention claimed in the patent application is obvious and lacks an inventive step,
considering the publications mentioned in (b) or what was used in India before the priority date.
(f) If the subject of any claim of the patent application isn't considered an invention according to
the law or isn't eligible for patenting.
(g) If the patent application doesn't sufficiently describe the invention or how it's done.
(h) If the applicant didn't provide required information or knowingly provided false information.
(i) If, in the case of an application based on a convention, it wasn't made within twelve months of
the first application for protection.
(j) If the patent application doesn't disclose or incorrectly mentions the source and origin of
biological material used for the invention.
(k) If the invention claimed in the patent application was already known within any local or
indigenous community.
These are the only grounds for opposition, and the Controller will hear them and decide on the
opposition within a set time period if someone requests.
Within a year of its publication, anyone with an interest can oppose the patent on similar
grounds. The Controller will form an Opposition Board to examine the objection and make
recommendations. Then, after hearing both parties, the Controller will decide whether to
maintain, amend, or revoke the patent based on these recommendations.
In cases related to prior knowledge or obviousness, personal documents or secret trials won't be
considered. If the Controller decides to maintain the patent with amendments, it will be amended
accordingly.
Glaxo Group Ltd. v. Ranbaxy Laboratories Ltd. (India): In this case, Glaxo Group Ltd.
opposed the grant of a patent to Ranbaxy Laboratories Ltd. for a pharmaceutical compound.
Glaxo argued that Ranbaxy's invention lacked novelty and inventive step, and thus, the patent
should not be granted. The Indian Patent Office held hearings and examined the evidence
presented by both parties before making a decision on the opposition.
Teva Canada Ltd. v. Pfizer Canada Inc. (Canada): This case involved a patent dispute over
Pfizer's Viagra patent. Teva Canada Ltd. sought to invalidate Pfizer's patent, claiming that it
lacked novelty and inventive step. The Canadian Federal Court heard the opposition and
ultimately invalidated Pfizer's patent, allowing Teva to produce a generic version of Viagra.
These cases demonstrate how patent opposition proceedings provide a mechanism for third
parties to challenge the grant of a patent based on various grounds such as lack of novelty,
inventive step, or insufficient disclosure. The outcomes of these cases can significantly impact
the validity and enforceability of patents.
PROCEDURE FOR OBTAINING PATENT
Who can Apply for Patent?

An application for a patent for an invention can be made by the person who claims to be the
actual and original inventor of the invention, or by someone they've assigned the rights to, or by
the legal representative of a deceased person who had the right to make such an application
before their death. Being the "true and first inventor" means being the actual creator of the
invention, not just the first person to bring it into India or the first person it's shared with from
outside India. If the inventor is an employee of a company, any inventions made during their
employment can be patented in the employee's name. However, the ownership of the patent
rights (like using, making, selling, etc.) will depend on the contract terms between the employee
and employer. It's common for research and development organizations to retain ownership
rights, even if the patent is in the name of the employee (the inventor).

Filing a Patent Application

The process of applying for a patent involves filing a single application for each invention in a
specified format and paying the required fees at the appropriate patent office. This application
must include either a provisional or complete specification. If the applicant is not the inventor,
proof of the right to apply must be provided, and the application must state that the applicant
possesses the invention. If the true inventor is different from the applicant, a declaration
confirming the true inventor's identity is required. For international applications under the Patent
Cooperation Treaty (PCT) to be considered under the Indian Patents Act, a corresponding
application must be filed in India. Recently, the World Intellectual Property Organization
(WIPO) introduced electronic patent filing under the PCT. The application form typically
requests information such as the applicant's and inventor's full name, address, and nationality,
patent specifications, and details of any applications made or patents granted in PCT or
convention countries offering the same privileges to Indian citizens or applicants.

Filing of Provisional and Complete Specification

A patent application requires a specification, which is a detailed description of the invention and
includes a claim defining its scope. This specification can be provisional initially but must be
completed within a year to avoid abandonment. Extensions up to 15 months are possible with a
fee and Controller's approval. The complete specification may include claims for improvements
or modifications to the original invention, allowing separate patents for these changes. For
convention applications, only complete specifications are accepted. Specifications should include
a title, drawings, detailed description, method of operation, best performing method, claims,
abstract, and inventor declaration. If an invention modifies or improves on another patented
invention, a patent of addition can be granted, but the same person must hold both patents. Each
claim in the specification has a priority date, usually the application filing date, unless specified
otherwise.

Publication of the Application

Normally every patent application is published after 18 months of filing the application and
objections are invited. The patent application shall not be open to the public for eighteen months
after the date of filing, or date of priority, whichever is earlier. However, if the invention is
considered relevant for defence purposes, the Controller may issue direction to prohibit or
restrict such publication. In the case of secrecy direction, the application will be published when
the secrecy directions cease to operate. The publication will include the particulars of the date of
application, number of application, name and address of the applicant and an abstract. Upon
publication of an application, the patent office, on payment of the prescribed fees, will make the
specification and drawings, available to the public. If the specification mentions a biological
material, which is not available to the public, the applicant is required to deposit the material in
an authorised depository institution. From this institute, the biological material mentioned in the
specification is made available to the public, as necessary.

Examination of the Application

Before granting a patent, the application must go through an examination process, which only
happens if the applicant or someone interested requests it within 48 months of filing the
application. If this request isn't made on time, the application is considered withdrawn. For
inventions related to chemical substances used in medicines or plant protection, the examination
request must be made within 12 months from December 31, 2004, or within 48 months of the
application, whichever is later. If not, the application is also considered withdrawn. Once an
examination request is made, the Controller sends the application and related documents to an
examiner, who checks if they meet the requirements of the law, if there are any objections, and if
the invention has been previously published. If objections are raised, the applicant is informed,
and they have 12 months to address them. If the objections aren't resolved, the application is
rejected after a hearing. If the complete specification is accepted, it's notified to the applicant and
advertised in the Official Gazette, making it open for public inspection. From the date of
advertisement until the patent is sealed, the applicant has similar rights as if the patent were
already sealed, but they can't start any infringement proceedings until it's sealed.

Opposition to the Grant of Patent

If anyone wants to oppose the granting of a patent, they can notify the Controller within 4
months of the advertisement of the patent's acceptance. They can do this if they believe the
inventor obtained the invention wrongfully, if the invention has already been claimed in another
patent application, if it was publicly known or used in India before the claim's priority date, if it
doesn't meet the Act's definition of an invention, if the information provided is false, if the
geographical origin of biological material isn't disclosed, or if a convention application wasn't
made on time. The Controller will inform the applicant of the opposition and may hold a hearing
for both parties before making a decision.

Grant and Sealing of Patent

If the patent application with the complete specification is accepted, either without any
opposition or after any opposition has been resolved, a patent will be granted if the applicant
requests it within six months from the date when the acceptance of the complete specification
was advertised. Once granted, the patent will be sealed by the patent office, and the sealing date
will be recorded in the register.
 Remedies
Section 108(1) of the Patents Act provides for the remedies to the plaintiff in case his patent
rights have been infringed. In any suit for infringement, the court may grant reliefs such as
injunction and at the option of plaintiff, either damages or an account of profits.

In addition, the court may also order that the goods which are found to be infringing and
materials and implement, the predominant use of which is in the creation of infringing goods
shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case
without payment of any compensation.

An injunction is a legal remedy aimed at preventing harm before it occurs. There are two main
types:
1. Temporary/interlocutory injunction: This type of injunction is temporary and lasts until the
case is fully decided. It is granted to protect the plaintiff from potential harm during the period of
uncertainty before the case is resolved. Its purpose is to prevent the defendant from causing
further harm that cannot be adequately compensated for through damages if the case is decided
in favor of the plaintiff at trial. Interlocutory injunctions are typically sought at the beginning of
a lawsuit and may be used to stop the defendant from profiting from patented products. To obtain
a temporary injunction, the patent holder must demonstrate the validity of the patent and prove
that the defendant's actions have caused irreparable harm.
2. Permanent injunction: This type of injunction is issued when the case is fully decided on its
merits. If the defendant is found to have infringed on the plaintiff's patent rights, the temporary
injunction may be converted into a permanent one. However, if the defendant is found not liable
and is proven innocent, the temporary injunction is lifted and does not become permanent. A
permanent injunction lasts for the duration of the paten
When trial courts grant an interim injunction without the defendant being present, which is called
an ex parte interim injunction, they must do so carefully. Here are some things they should
consider:
1. Whether both the plaintiff and defendant live out of state and their information is easy to find.
2. If the sales of the infringing products are not significant.
3. Whether the injunction would cause the defendant's business to shut down.
4. It's important to closely examine certificates and marks in patent or trademark disputes.
5. An injunction cannot be granted without evidence of infringement.
6. The patent owner can choose to claim damages or an account of profits, but not both. Usually,
this choice is made when the initial claim is filed.
7. If the plaintiff chooses an account of profits, they can only claim the profits directly linked to
the defendant's use of their invention.
In a particular case (Ravi Raj Gupta v. Acme Glass Mosaic Industries), the court decided that the
patent didn't meet the requirements of invention according to the Patents Act, 1970. Therefore,
no interim injunction was given. However, the defendant was told to keep detailed records of
production and sales in case the plaintiff wins the case.
Courts can also order the seizure, forfeiture, or destruction of infringing goods and materials
without compensation, along with other solutions.