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Patent
Patent
A patent is: a grant of a limited time monopoly by the State to an inventor to use, sell, distribute, license his invention in return of its full disclosure which can be used by the public after the expiry of its term. A patent provides protection for the invention to the owner of the patent for a limited period, generally 20 years.
TRIPs
TRIPs agreement is aimed at harmonising the Intellectual property laws of the Member-Nations. India is a signatory to the Trade related Intellectual Property Rights Agreement and has to fulfill certain minimum obligations as agreed.
Term of Patent
The term of a patent will now be changed to Twenty years from the date of filing the Application Currently the term for a method or process of manufacturing a food/ drug/ medicine (or capable of being used as above) is Five years from the date of sealing or Seven years from the date of patent (whichever is shorter) & in all other cases, a period of Fourteen years from the date of patent.
Invention
The definition of invention will be changed and brought in line with definition as laid down in TRIPs. The new definition states Invention means a new product or process involving an inventive step and capable of industrial application. Inventive step is defined as a feature that makes the invention non obvious to the person skilled in the art. Industrial application is defined as capable of being made or used in any industry
Invention (2)
The earlier definition stated invention means any new and useful -(i) art, process, method or manner of manufacture; (ii) machine, apparatus or other article; (iii) substance produced by manufacture, and includes any new and useful improvement of any of them, and an alleged invention.
Inventive Concept
It is now provided that claim or claims relating to a single invention or group of inventions can be linked so as to form a single inventive concept. Thus, a group of inventions linked to single inventive concept can be covered in a single application.
Traditional Knowledge
Opposition/ Revocation proceedings will now be filed on the ground of anticipation of the invention having regard to the knowledge, oral or otherwise, available within any local or indigenous community in any country. This amendment protects the traditional knowledge being monopolized into patent.
Burden of Proof
In case of Process Patent once the Patentee proves that the infringing product is identical to his patented product, burden of proving that the patented process is not violated is no the alleged infringer. However, in considering whether a party has discharged the burden imposed upon him by this amendment, Court shall not require him to disclose any manufacturing or commercial secrets if that appears unreasonable to the Court.
Parallel Imports
Rights of patentee now includes right to exclusive import. Earlier India followed the concept of International Exhaustion of IPR. In respect of process patent, the exclusive right is restricted to product obtained directly by that process. This new right is in addition to the existing rights of making /selling/ distributing a product or using the process.
Marketing Approval
The new Act enables making and using of patented invention for obtaining marketing approval within three (3) years before the expiry of patent & it also authorises import of patented products (parallel import) from the person authorised by patentee to sell and distribute the product.
Patent Application
All patent shall be dated as of the date on which the application for patent was filed. (under existing provision patent is dated from the date of filing of complete specification). A major change is the compulsory publication of all applications (except those related to Defence) after a period of 18 months (till which time it will be kept secret).
License of Right
Provisions for License of Right (S: 86,87 & 88) are omitted. These provisions provided that upon application a patent would be endorsed with License of Right if reasonable requirements of the public were not met.
Miscellaneous
Rectification powers are now vested in the Board and Appellate Board as against the Court/High Court earlier. Assignment, etc can now be recorded any time even after period of six months (earlier it was six months plus six months extension). Period of fifteen months for putting the application in order from the date of the statement of objections issued by the Controller, is now reduced to twelve (12) months and the provision for extension of time is deleted.