A STUDY OF PATENT SYSTEM IN INDIA- WITH REGARDS TO PATENT COOPERATION TREATY

A STUDY OF PATENT SYSTEM IN INDIA- WITH REGARDS TO PATENT COOPERATION TREATY

Introduction

The history of Patent Law can be traced down from the year 1911 when the Patent and Design Act was introduced. The Present patent Act came into force in the year 1972 and is the amending and modification of the old Patent act. Then again the patent act was amended to extend its diversification and it included different sectors like technology, food, drugs, and chemicals, etc. The laws relating to Exclusive Marketing Rights have been repealed, and rules for establishing compulsory licenses have been introduced. And with that, the law of post-grant and pre-grant opposition has also been incorporated. A product should not be in the category of inventions that are non-patentable as given under sections 3 and 4 of the patent act, 1970. In India, a patent application can be filed individually or jointly either by the inventor or his assignee.

Procedure for Grant of Patent

As soon as you file the application for patent, a request for examination is to be made to the Indian patent officer. After the first examination, the person is given the chance to make the changes if any arising out of the said application. The said changes have to be made within 12 months of the issue of the first examination report. And if the same is not been compiled within the stipulated time then it will be considered as avoidance and ignorance by the applicant. And if the compliance has been duly filed then the patent will be granted and notified in the Patent Office Journal.

Term of Patent

The period of every patent is 20 years from the date of filing the application, doesn’t matter if it was filed with provisional or complete specification. But in the case of applications filed under the Patent Cooperative Treaty (PCT), the 20 years term starts from the priority date. A patentee has to renew the patent every year by paying the renewal fee.

Restoration of Patent

A patent can be restored by filing an application within 18 months from the date of cessation of the patent along with a prescribed fee. After the request, the matter is processed in the official journal and the same will be notified to the applicant after a period of time.

Rights to a Patentee

If the patent is for a product then the person has a right to stop others from making, using, offering, selling that product in the market and if the grant of patent is for a process then the person has the right to prevent others from using that processor using that process’s product, offering or importing the product anywhere and outside of India.

There are certain things which cannot be patented, such inventions should not be obvious, frivolous, contrary to law, morality or health, a mere discovery of a principle, abstract theory formulation, rearrangement of copying of other services, method of agriculture and Inventions related to atomic energy, etc.

Secrecy by the Indian Patent Officer

All applications related to patent are to be kept confidential from the date of filing and further they are then published in the official journal of the patent office. After the publication public can see the documents and may take a copy after the payment of a prescribed fee.

Compulsory License

Compulsory licensing of a product or process is very essential in regards to the patent act but the license is only granted after the completion of some terms and conditions. Any person after the expiration of 3 years calculated from the ceiling of a patent can make an application to the Controller f patent for grant of license of the patent subject to certain conditions like

• The needs of the public with respect to the patent invention is not been satisfied

• The patent invention is not available at a reasonable price

• That the invention is not worked within the limits of India

The application for a compulsory license can be made by any person irrespective of the fact that he is already the holder of a patent license under his name. No person can be prevented from saying that the requirements of the public at large are not satisfied with respect to the patent invention or that the invention is not made available to the public at a reasonable price by reason of any admission made by him.

And if the conditions are satisfied to the controller then he may grant a patent to the applicant by order as he may deem fit.

Some things which are considered by the controller of patents before granting license are-:

• Nature of invention

• Measures taken by the licensee to make full use of the invention

• The ability of the applicant to make the product advantageous to the general public

• National emergency or other circumstances of extreme emergency

• Public non-commercial use

• Anti-competitive practices adopted

The compulsory license cannot be taken as a matter of right, it is subjected to fulfillment of above said conditions and to the discretion of Controller of Patents. Judicial recourse is also available against any illegal order against the controller for grant of license.

Patent Co-operation Treaty

As the name suggests this is a treaty containing a legal agreement and is signed by various countries. The main aim of the PCT is to smooth the initial filing process, thus making it easier and cheaper to file a patent application in several other countries. The application can be filed with the national patent officers of the respective state or it can be filed with the International bureau of WIPO in Geneva. Filing a PCT application has an effect of assigning all states bound by the PCT on the international filing date. The outcome of international application is the same in each state as it would have been in the case of national patent application.

Infringement of Patent

Legal proceedings for infringement can only be initiated after grant of patent license but can include a retrospective claim as well from the date of publication for the grant of license.

Infringement includes illegal or unauthorized making, importing or selling patented invention within the India. Under the patents Act, 1970 only a civil action can be made in the court of law. A suit of infringement can be defended on various grounds and relied on such defense; revocation of patent can also be claimed and initiated.

To know more about, What is patent law, see the video below -

BY:-

Shruti Kulshrestha