Monday, April 30, 2007


1. An Indian patent can be enforced worldwide

Patent rights are territorial. An Indian patent is valid only in India.

2. Patent right is an absolute right.

The courts can invalidate patents on certain grounds.

3. Once patent is granted, government stops others from copying or imitating my invention.

Enforcing patent rights is the responsibility of the patentee.

4. Patenting is a costly process.

The total cost for obtaining a patent by an individual can be as low as 3500/-

5. Patents are only for complex inventions

Patents can be for simple inventions. There are patents on even gem clips.

7. Patents are the big companies ball game.

Large number of patents is obtained by individual inventors and applicants every year.

6. PCT grants world patent.

PCT is not a granting authority. It’s a mere patent application facilitation system.

9. The patent is granted to the first inventor.

You may be the first to invent, but it’s the first to file that gets the patent.

10. A patent attorney should prepare and file my patent application.

Applicants can themselves prepare, prosecute and get the patent granted.

12.Patents result in restrictive trade practices

Patent act has sufficient safeguards to ensure that the patentee meets the reasonable requirements of the public at affordable price.

8. Once granted, patent is in force for 20 years

The patentee has to pay the Renewal fee every year to keep the patent in force.

13.Patent right is permanent.

Patents are granted for a limited period of 20 years only.

14.The patent officials will inspect the invention in your premises.

The decision as to whether a patent should be granted is entirely based on the application and written description.

15.The patent applicant should have a working model of the invention before he applies.

The invention need not be fully workable at the time of making the application.

16.You can get patent for an idea.

Patents do not protect the idea. It is the implementation of the idea that gets protected.

18.Patentee can initiate criminal action against the infringers.

Only civil remedy is available to the patentee against infringers.

17.Patent gives the owner the right to make, sell or use his invention-

Patent grants the patentee only the right to prevent anyone else from making, offering for sale, selling, importing or using his invention with out his consent.

History of Indian Patent System

The first provision in the nature of patent rights in India, which was at that time under the British rule, was enacted in 1856. Under this Act, the monopolies were styled " exclusive privileges ". This Act was repealed in toto in 1857 as it was introduced without the prior sanction of the Queen. Soon after that in 1859 another Act free from the defects of 1857 was passed. In 1872 the provision of the Act of 1859 were further added by the provision of " The Patents and Designs Protection Act ", which solely related to designs. The Act of 1872 was further supplemented in 1883. In 1888 Act V of 1888 superseded all the Acts of 1859, 1872 and 1883. This was further revised and replaced by the Indian Patents and Designs Act, 1911. This was amended from time to time in 1920, 1930, and 1945.

After independence it was felt that the Indian Patents and Designs Act, 1911 was not fulfilling its objective. As such, a committee under the Chairmanship of Dr. Bakshi Tek Chand, a retired Judge of Lahore High Court was appointed in 1949 with a view to ensure that the Patent system was more conducive to national interest and to suggest modifications and alterations to the existing Act suitable for making the country self-reliant in technology. Based on the interim report the Act was modified, regarding working of the inventions in 1952, and in 1953 the Controller was authorized to grant licenses on foods, medicines etc. A bill based on the recommendations of this Committee was introduced in the Parliament in 1953, but it lapsed due to dissolution of the Lok Sabha.

In 1957, Govt. of India further appointed Justice N. Rajagopala Ayyangar to examine and review the Patent law in India who submitted his report in September 1959 recommending the retention of Patent System despite its shortcomings. The Patent Bill, 1965 based mainly on his recommendations and incorporating a few changes, in particular relating to Patents for food, drug, medicines, was introduced in the lower house of Parliament on 21st September, 1965. The bill was passed by the Parliament and the Patents Act 1970 came into force on 20th April 1972 along with Patent Rules 1972. This law was suited to changed political situation and economic needs for providing impetus to technological development by promoting inventive activities in the country.

The Patents Act, 1970 is a landmark in the industrial development of India. The basic philosophy of the Act is that patents are granted to encourage inventions and to secure that these inventions are worked on a commercial scale without undue delay; and patents are granted not merely to enable patentee to enjoy a monopoly for the importation of the patented article into the country. The said philosophy is being implemented through compulsory licensing, registration of only process patents for food, medicine or drug, pesticides and substances produced by chemical processes which, apart from chemical substances normally understood, also include items such as alloys, optical glass, semi-conductors, inter metallic compounds etc. It may, however, be noted that products vital for our economy such as agriculture & horticulture products, atomic energy inventions and all living things are not patentable. Thus, the Patents Act 1970 was expected to provide a reasonable balance between adequate and effective protection of patents on the one hand and the technology development, public interest and specific needs of the country on the other hand.

Uruguay round of GATT negotiations paved the way for WTO. Therefore India was put under the contractual obligation to amend its patents act in compliance with the provisions of TRIPS. India had to meet the first set of requirements on 1-1-1995. This was to give a pipeline protection till the country starts giving product patent. It came to force on 26th March 1999 retrospective from 1-1-1995. It lays down the provisions for filing of application for product patent in the field of drugs or medicines with effect from 01.01.1995 and grant of Exclusive Marketing Rights on those products.

India amended its Patents Act again in 2002 to meet with the second set of obligations (Term of Patent etc.), which had to be effected from 1-1-2000. This amendment, which provides for 20 years term for the patent, Reversal of burden of proof etc. came into force on 20th May, 2003. The Third Amendment of the Patents Act 1970, by way of the Patents (Amendment) Ordinance 2004 came into force on 1st January, 2005 incorporating the provisions for granting product patent in all fields of Technology including chemicals, food, drugs & agrochemicals and this Ordinance is replaced by the Patents (Amendment) Act 2005 which is in force now having effect from 1-1-2005 .

Under the Patents Act, the Government of India is empowered to make rules for implementing the Act and regulating the Patent Administration. Accordingly, the Government brought into force Patents Rules, 1972 w.e.f. 20.4.1972. These Rules were amended on 2.6.99 and replaced by the Patents Rules 2003 w.e.f. 20.5.2003 and further it is amended by the Patents (Amendment) Rules 2005, which is in force now; this includes provisions relating to time-lines with a view to introducing flexibility and reducing processing time gradually for patent applications, and simplifying and rationalizing procedure for grant of the patent.

There are four Schedules to the Patents (Amendment) Rules 2005; the First Schedule prescribes the fees to be paid; the Second Schedule specifies the list of forms and the texts of various forms required in connection with various activities under the Patents Act are set out in this schedule. These forms are to be used wherever required and if needed, they can be modified with the consent of the Controller. The Third Schedule prescribes form of Patent to be issued on Grant of the Patent. The Fourth Schedule prescribes costs to be awarded in various proceedings before the Controller under the Act.

Friday, April 27, 2007

Patent Scenario in India

The Patenting system in India is becoming more advanced and hardly a day passes by without mention of Patents in the news. Recently the Indian Patent Office celebrated its 150th year of existence.In Chennai,the Office organised a grand celebration from 25-26 April,2007, inviting school and college students to participate in essay competitions,paper presentations and was overwhelmed by the response. It is a misconception that the system of intellectual property rights is only for humongous multinational companies and their sophisticated patent attorneys. But the anniversary celebrations are an indication that in India people from ordinary walk of life are becoming more interested in patenting.