Current and emerging issue in patent

- Kajal Sharma
Meaning of patent
Intellectual property is a creation of mind; it is a creative work of human-intellect therefore it
is also called “property of mind”. According to Article II (viii) of the Convention establishing
World Intellectual Property Organisation (WIPO), intellectual property shall include
inventions in all fields of human endeavour.1 Patents are widely acknowledged to safeguard
the inventors and their discoveries. It has the potential to provide protection as well as
establish the credibility and authenticity of the new invention. When an individual invests his
life, time, energy and all his power into inventing something all he needs in return is the
protection of his interest and to achieve this rationale he needs to get his invention patented.
By virtue of patent, the inventor would be construed with an exclusive right to exploit and
use its invention for a specific span of time. In India, the period is twenty years 2 after which
the invention would be part of the public domain. An invention can be patented if the same
relates to a new product or method that demands an inventive process/method, and can be
sufficiently used in or by the industry. It cannot, however, fall into the non-patentable
category as specified by sections 3 and 4 of the (Indian) Patents Act, 1970. In India, the true
and first inventor or his assignee will apply for obtaining the patent, which can be done either
alone or collectively.3
Current and emerging issue in patent
The system is currently confronted with two major challenges: an internal challenge relating
to the system's own activity, and an external challenge relating to the patent system's policy
position and economic and social consequences.4 In 2012, 2.35 million patent applications
were filed worldwide. India's share of the overall amount of filings was a meagre 1.8 %5
India still has a long way to go in terms of enforcing the TRIPs agreement, achieving
institutional reforms, and developing technical capability. Section 3 of the Indian Patent Act
states that “mathematical method or business method, computer programme or algorithms
are not patentable” unless they solve a technical problem and a new method or process is
established as a result of it6. However, India should broaden the spectrum and encourage
business practises to be patented in order to win investors' confidence and boost the market.
TRIPs encourage foreign direct investment, the use of genetic resources, and environmental
protection, among other things.  Another concern that has emerged is that, because patents
can be traded, certain firms have been able to seek licences to raise medication costs rather
than investing in medical research. As a result, it seems that the "modern economy," which is
a result of patent rights, is uncontrolled and not regulated enough. 7 The trends seen in India
are consistent with global patterns, despite the fact that the amount of patent lawsuits in India
increased only after 2007. The Delhi High Court in Merck Sharp & Dome v Glenmark

1
Article II (viii) of Convention establishing WIPO
2
section 53, Patents Act,1970
3
https://www.mondaq.com/india/patent/1048570/challenges-in-patenting-pharmaceutical-products-in-india
4
https://www.wipo.int/patent-law/en/developments/intro.html
5
https://www.livemint.com/Politics/LkKhP62yJrhSRJZDoqDIiN/Indias-patent-problems.html
6
Section 3, Indian Patent Act,1970
7
https://www.pulj.org/the-roundtable/emerging-issues-related-to-patents
Pharmaceuticals Ltd8, forbade Glenmark Pharmaceuticals Ltd., a Mumbai-based business,
from distributing an anti-diabetes medicine based on Merck's patented medicine. This
judgement is notable since it was decided in less than two years, including the time spent in
trial. The Delhi High Court has seen the most patent litigation, followed by the Bombay High
Court and the Madras High Court. The Delhi High Court has become a locus for patent
litigation, and it has helped to establish Indian patent law. A patent infringement lawsuit
involves not only a matter of law, but also complicated technological issues that must be
resolved for a legitimate and just ruling. 9 Patenting should include a well-planned strategy
that works in parallel with the inventions to ensure its fine implementation. India's
intellectual property (IP) administration, which was extensively excoriated in the early years
of the evolution of the patent system, reason behind was lack of transparency and
discriminatory dealings have now made its file movements and review procedure available to
the public. But that's only the beginning of the change.

8
(CS(OS) 586/2013)
9
https://www.legal500.com/guides/hot-topic/patent-litigations-in-india-emerging-trends/