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Today, we are living in the midst of information revolution . Intellectual property is the result of conversion of knowledge into a commercially exploitable thing. The patent law recognises exclusive right of a patentee. The word patent derives from the Latin word ¶patere· which means ¶to be open·, ¶referring to an open letter of privilege from the sovereign·.1 Patent is the protection granted to an inventor of a concept or idea, and innovators have the legal right to fight against anyone who tries to use such invention without the consent of inventor for commercial purposes. The patent does not protect ideas per se. Ideas must be resulted in the concrete manifestation to get the patent monopoly. Patent right is not an automatic right, but it is statutorily conferred right. From the perspectives of the person who invented it, patent is an incentive for him to invent and encourages him to pool investment n working on new inventions. 2 The concept of patent incentive is required for revolutionary inventions. Patent does not exclude the general public from using such invention after the expiry of monopoly right. Thus, legal maze of the system of patent attempts to harmonise the rights of intellectual holders & public at large. Patent rights are assets & its use, license, transfer should submitted to only the highest possible standards of certainty. 3 It is a statutory grant of monopoly for working an invention & vending the resulted product. Patent is becoming a central issue in economic, trade & scientific co-operation relations between industrialised and developing countries. 4
The earliest legislation for the protection of IPR was in the area of patents. There is a mention Greek law, in 510 B.C.- exclusive right was granted to a who prepared unique, tasty dish, except that cook no other person was allowed to prepare that dish for a period of one year. 5 The reference to patent can be found in Aristotle·s Politics, composed in the fourth century B.C. in the course of discussion rival description of a good constitution,
Aristotle mentions a proposal by one Hippodamus of Miletos. Acc- to him, Hippodamus called for a system of rewards to those who discover things useful state. In the year 1331, King Edward ² III of Great Britain granted a non-exclusive grant to export woollen cloth. But, the Guild system discouraged the recognition of an Individual inventor·s genius. In the early 14th century in Venice, for corn mill designs & in Florence to the celebrated architect Brunelleschi for his 1421 invention of barge with a hoist for transporting marble ´Patentµ was granted. Hence, the first real patent system was builtin the late 15th century. The credit of the introduction of the culture of ´Real Patent Systemµ goes to Venice.
INTERNATIONAL DEVELOPMENTS IN THE FIELD OF PATENT PROTECTION
The air of Liberalisation, Privatisation, Globalisation of trade & commerce has given an international character to the intellectual property. Before the existence of any international convention, it was difficult to obtain protection in many countries due to diversity in national laws. In the process of globalisation from any nook & corner of the world any person may come & invest in other nations or he can acquire right over any form of Industrial property by using his intellect. The international character of intellectual is recognised in the various international conventions like Paris convention, Berne convention, Universal copyright convention, etc.
(1) Paris Convention :
Paris convention has been considered as the corner stone of the exiting international patent system. Paris Industrial property Convention 1883 was the first attempt in the process of culmination of different countries patent laws. In the late 19th century various congresses in Vienna laid down a foundation for international patent protection. 6 The Paris Convention of 1883 is one of the most important legislations in the field of intellectual property rights. The Paris convention established the fundamental principles of national treatment, the right of priority and the guarantee of a certain minimum protection. The Paris convention allows an applicant to obtain a priority date by filling an initial applica tion, typically in the inventor·s home country. The applicant may then file a patent application
in any country bound by the convention withi n 12 months and maintain the earlier priority date. Thus the later applications enjoy a priority status with respect to all applications relating to the same invention field after the date of the first application. The Paris convention recognises expressly that the right of priority may be invoked by the successor -in-title of the first applicant. Paris convention for the 1st time in the history of IPR gave due recognition to any form of industrial property. Now it is known as Stockholm revision 1967. Paris convention was supplemented by Berne convention & Madrid convention. The Paris convention has provided the framework for the Patent Co-operation Treaty, the European Patent Convention and the Community Patent Convention. Contracting states are allowed to enter into separate treaties provided that these agreements do not contravene the provisions of Paris convention.
(2) Patent Co-operation Treaty :
The PCT is an agreement for international co-operation in the field of patents.PCT has simplified & introduced economical, easy method for filing of patent application. India is one of the party to PCT. It has come into force in Jan 1978 & it has been ratified by 123 countries in Jun 1st, 2004. PCT is administered by the WIPO. This treaty regulates the formal requirements that any international application must comply with. The PCT is a special agreement under the Paris convention & an agreement for international co-operation in the field of patents. The PCT is a procedural Treaty & the actual grant is by the national patent offices. To achieve its objects the PCT enables the filing with the receiving office a single application called the international application.
(3)European Patent Convention :
After the world war-II there was global change in the international arena in the field of system of patent. EPC was signed at Munich at 5th Oct, 1973. The main objective of this convention is to strengthen co-operation between the European states in respect of protection of inventions. EPC is a regional convention for the grant of patents in Europe. It has laid down uniform patent eligibility criteria for member states. It establishes a single patent granting authority namely the European Patent
Office (EPO). It provides patent protection for 20 years from the date of filing of the application. The EPC establishes the European patent office in Munich, which was power to grant patents for Member States, thus providing an alternative route to an application through the national patent office. Applications for Euro patents granted through this system will be the subject of a European search, early publication of the application and search report; examination upon the request of the applicant, taking account of all the convention·s requirements for a valid patent, and opposition before the EPO within a limited period to grant. Euro patents must be accorded a term of 20 years from date of filing of the application for it.
(4)Community Patent Convention :
After the creation of European Economic Community discussions about CPC were begun. It was signed in the Luxembourg in 1975. The main intention of this convention is to provide a single unitary patent for the entire European Union. 7 The CPC provides for a true European patent, in that one administrative agency would issue a single patent effective in every signatory nation. Additionally, patent litigation is limited to certain national courts, a Common Appeal Court and the European Court of Justice. A community patent is unitary in that it can be granted, transferred, revoked or allowed to lapse only in respect of the whole of the common market territories. It is a subject to the legal regime of CPC. The convention was granted in the hope that the United Kingdom, as a major patenting country, would be joining the community. But, United Kingdom was not admitted the plan. Hence, this plan was collapsed.
(5) The Patent Law Treaty (PLT) :
This treaty was concluded in Jun 2000. It harmonises the formal requirements for patent filing in the contracting states. It simplifies the formalities. 43 states have signed this treaty. Art-10.1 of the PLT states that ² non compliance with one or more formal requirements may not be a ground for revocation or invalidation of the patent application either totally or partially. Except such non-compliance of a formal requirement must have aroused out of fraudulent intention .
Formal conditions of patentability that are not provided either in the PCT or in the PLT itself are not allowed by the PLT. The PLT is complementary to the PCT, in the sense that it applies to national & regional patent applications permitted under the PCT.
(6)The Substantive Patent Law Treaty :
PLT deals with formal matters relating to patent law. Little progress has been made in negotiations in harmonisation of substantive patent law. But due to reluctance of US it has not come into picture. After the adaptation of the uniform Patent classification system, European states agreed to the 1963 Convention on the unification of certain points of Substantive Law on patents for inventions.
(7)World Intellectual Property Organisation : WIPO has came into force in 1970. It was established by a convention signed at Stockholm in 1967. WIPO is an intergovernmental organisation, & is one of the 16 specialised agencies of the United Nations System of Organisations. Present it has 184 members. India is a member of the WIPO. The headquarter is in Geneva, Switzerland. WIPO has responsible for the promotion of the protection of IP throughout the world through co-operation among states, & for administration of various ´unionµ each founded on a multilateral treaty & dealing with the legal &administrative aspects of IP. It encourages the conclusions of new international treaties & modernisation of municipal laws in the field of IPR. It gives technical assistance to developing countries, assembles & disseminates information, maintains service for facilitating the obtaining of protection of inventions, trademarks & industrial designs for which protection i several countries is desired and providing administrative cooperation among member s tates.
(8)TRIPS : In 1948 the general Agreement on trade & Tariffs was set up to deal with multilateral trade issues. The Uruguay Round was the last round of GATT negotiations which was finally concluded in Apr, 1994.
WTO came into force on 1st Jan, 1995. TRIPS is an integral part of the Final Act of the Uruguay Round. The provisions of the TRIPS agreement must be followed by all the member countries. TRIPS cover the whole gamut of IPR. It deals with the whole range of IP issues including patent, trademarks, geographical identifications, industrial designs, integrated circuits, copy right & trade secret protection & provisions relating to basic principles, enforcement & dispute resolution. The main objective of the International Conventions is to protect all form of IP & to promote harmonisation of industrial laws of various countries in the world.
HISTORY OF PATENT LAW IN INDIA The system in India emerged when India was a colony of the British & therefore the British used their own system as a drawing a/c while drafting the Indian Patent Act. The first Act relating to patent rights was passed in 1856.8 certain exclusive privileges were granted to inventors of new manufactures for a period of 14 yrs. The Act was modified in 1859 & certain exclusive privileges were granted to inventors for making, selling & using inventions in India & authorising to do so for 14 yrs from the date of filing specifications. Thereafter, the Indian Patent & Designs Act 1911 was a detailed legislation & it occupied the field in India, fill the passing of the Patent Act of 1970. This Act established for the first time in India, the system of patent administration under the management of the controller of patents. During the period from 1911-1970 various amendments were made to this Act from time to time to review & improvise the patent legislation as to serve the societies changing needs. In the year 1948 a committee was appointed to review the patent system under the leadership of Dr.B.T.Chand, a retired Judge of the High Court of Lahore. The committee submitted its final report in 1953. In report it was stated that the Indian Patent System has failed to stimulate invention among Indians & to encourage the development & exploitation of new inventions for industrial purposes in India. In the year 1953, a bill was introduced but, it was lapsed. In 1957, the govt of India constituted a committee headed by Justice Rajgopal Ayyangar to revise the patent Law in India. At that time, foreign multinational companies controlled the Indian Drug Industry. They imported drugs to the Indian market. Hence, ¶life saving drugs· prices were very high in India. The committee considered the concept of economic & social justice enshrined in the
preamble of the constitution of India & Art-21 of the constitution, which ensure the right to health to all the people. By observing the above stated aspects the Committee recommended for Process Patent rather than Product Patent. On the basis of this report Patents Bill was introduced in the Loksabha in 1965 which lapsed. The Bill was referred on 25th Nov, 1965 to a joint committee of Parliament. The Patents (Amendment) Bill, 1965 as adopted by the Joint Committee was presented to Loksabha in 1966. But, it lapsed with the dissolution of the Loksabha in March 1967. The Bill was again introduced in the same year which was finally resulted in the Patent Act of 1970 was a milestone in the journey of patents.
The Patent Act of 1970 ²
This act reflects the concerns of a developing country, balanced with the interests & needs of the inventors. Under the act, the Patents are granted to encourage inventions& secure that the inventions are worked in India on a commercial scale & fullest extent reasonable practicable, without undue delay & patents are not granted merely to enable Patentees to enjoy a monopoly for the importation of the patented article. Special States f Patents Relating to Medicines, Food items & Chemicals :The Act accords special states to Patent relating to medicine, food items & chemicals. No product Patent can be granted relating to medicines, food items & chemicals, only the process of manufacturing such Products can be Patented. 9 In case of grant of Patents for certain substance which is not food items or drugs as such but are capable of being used as food & drugs, the same are deemed to be endorsed with the words ´licences of rightsµ. The significance is that a patent endorsed with these words, does not retain exclusive right of patentee. Any other person can apply to a right to exclusive use is limited only to 3 yrs. This is for to use of invention in certain circumstances for general good. India joined to WTO in Dec 1994, to fulfil the obligations as imposed by the TRIPS agreement the Patents Ordinance, 1994 was promulgated. In Jan 1995 to Uruguay Round Agreement including TRIPS came into force. In March 1995, Patents (Amendment) Ordinance, 1994 lapsed. In May 1996, the Patents (Amendment) Bill 1995 lapsed due to the dissolution of the Loksabha. The Jul 1996, USA complained the WTO that India had violated TRIPS agreement. In 1998 the Patent (Amendment) Bill was introduced in Rajyasabha. The Patents
(Amendment) Act as finally passed in March 1999 amidst wide spread criticism & opposition.
The Patent (Amendment) Act 1999:Establishment of WTO in 1995 & adaption of TRIPS a revolutionary change in IPR regime worldwide. India having became founder member incurred obligation to bring a IPR legal regime in tone with IPR obligations as envisaged in TRIPS within 10 yrs of time frame. Accordingly the Patent Act 1970 was amended in phased manner.
Exclusive marketing Rights [EMR]:By the Patents (Amendment) Act 1999 a new chapter 10 as inserted in the Patent Act, 1970 with retrospective effect from 1st Jan 1995 which deals with the exclusive marketing rights to sell or distribute certain articles or substances in India.
Special Provision for Selling or Distribution:Where, at any time after an exclusive right to sell or distribute any article or substance has been granted, the Central Govt. is satisfied that it is necessary or expedient in public interest to sell or distribute the article or substance by a person other than a person to whom exclusive right has been granted, it may be itself or through any person authorised in writing by it, sell or distribute the article or substance. The Central Govt can by notification after an exclusive right to sell or distribute an article or substance has been granted; direct that the said article or substance shall be sold at a price determined by a specified authority.11
Patent Act (Amendment) 2002:- (uniform term 20 yrs provided)
The second major changes in the basic Act of 1970 were introduced in the year2002. Development of technological capability of India coupled with need for integrating the patent system with international practice & TRIPS mandate led to make following changes-
(iii) (iv) (v) (vi) (vii)
To define the term ¶invention· in consonance with international practice & consistent with TRIPS agreement. To modify sec.3 of the present act to include exclusive permitted by TRIPS agreement & also subject-matters like discovery of any living or non living substances occupying in nature in the first of exclusions which in general do not constitute patentable invention. To align right of patentee as per Art.28 of the TRIPS Agreement. To provide a uniform term of patent protection of 20yrs to all categories of invention as per Art.33 of TRIPS agreement. To align the provisions relating to compulsory licensing or rights. To provide provisions relating to parallel import of Patented Products. To provide an appellate board for speedy disposal of appeals & rectification of register of patent which is at presented before High Court.
Patent (amendment) Act 2005 12:The legal requirements of making Indian Patent Law to fully comply TRIPS, necessitated the major change in Patent Act. Significant changes which have been incorporated are as under ² (i) Product Patents to be issued in areas like drugs, food & chemicals etc, various sections of the Indian economy including bio-tech & software would also benefit with the introduction of product Patents. (ii) Provision for enabling the grant of compulsory license for exp ort of patented medicines to countries which have insufficient or no manufacturing capacity to meet Public health emergence such as HIV, AIDS. This provision is in accordance with the Doha Declaration on Public health. (iii) Provision for acquisition of patent for public health purposes. (iv) Provision for Pre-grant & post-grant opposition to the granting of a patent. (v) Protection will be valid for 20yrs from the date of application. (vi) Provision for exclusive marketing rights have been deleted. (vii) Govt will revoke a Patent, which is found to be mischievous to the state r prejudicial t the public. In the light of above discussed facts it can be concluded that process Patent Regime in India has been largely affected by the TRIPS agreement.
Due to concept of Product Patent Indian Govt is not in a position to control the prices of drugs. There are least flexibilities available in the TRIPS for developing & least developed countries in relation to access to medicines. It is important to develop a patent culture in India so that people must be aware about the protection of IP & to prevent others especially MNCs & industrialised countries trading on Indian indigenous knowledge. To combat the challenges posed by the TRIPS India has to utilise its human resources & other resources property.
1. Kanika Goswami Information Technology 2. Rajgopala Ayyangar Report on the Revision of Patent Law 3. A.V.Ganesan, Resolution Proceedings & Background Papers 4. Ibid 5. Prof.P.Ishwara Bhat, Historical Evolution & Development of I.P.Rights 6. Holyoak & Torremans IP law 7. Lionel Bently, Brad Sherman, IP Law at P.319 8. Act VI of 1856 9. Patent Act 2005 has now allowed product patent in this area. 10. Chapter IV A consisting of sec.24A to 24F 11. Grant of EMR was a transitional arrangement. 12. Substituted in place of Patent (Amendment) Ordinance 2004
1) Patent Law
Eastern Law House
2) Law of Patents
Apr.2005 - Eastern Book Company Rajiv Jain , Rakhee Biswas Pharma Book Syndicate
3) Law of Patents(procedure & practice) 4) Patents N.R.Subbaram Ed.2003
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