An Analysis of the Development of Patent Law in India: A Look at the 3 Amendments

to the Patents Act, 1970

The patent law in India has undergone significant changes since it was first enacted in 1970
so as to comply with the international standards and fulfil India’s obligation under the TRIPS
Agreement. In this article, the author seeks to conduct a brief overview of the Patent Law in
India. The author looks at the background in which the law emerges, the objective of
the Patent Act, its main features as well as the Amendments which took place in 1999, 2002
and 2005.

I. Background of the Origin of the Patent Law and the Patents Act, 1970
Prior to India’s independence, the legislation concerning the patent regime in India was
the Indian Patents & Designs Act, 1911, colonial legislation which was found lacking in
achieving its objective post India’s independence. There was a need for comprehensive patent
legislation to cater to India’s changed political and economic circumstances. This realization
prompted the Government to set up a committee led by Justice (Dr.) Bakshi Tek Chand, a
retired Judge of Lahore High Court, in 1949 to thoroughly review India’s patent law and
make sure that it was conducive to the national interest.
Some of the major purposes with which the committee was set up were to analyse the
working of the Patent system in India, make recommendations for improving the legislation,
especially with regards to those provisions dealing with the abuse of patent rights, consider
the restrictions which must be imposed on patents relating to food and medicine, suggest
steps for ensuring effective publicity to the patent system and to the patent literature, to
review the working of the patent office, to generally report on any improvement that would
enable the Indian Patent System to be more conducive to national interest by encouraging
invention and the commercial development and use of inventions etc
Based on this, amendments were brought into the 1911 Act regarding the inclusion of
provisions for compulsory licencing, revocation and licence of rights. A few years later in
1957, another committee headed by Justice N. Rajagopala Ayyangar was formed to examine
the question of revision of the Patent Law and advise government accordingly. One main
recommendation of this committee was the grant of only process patents with respect to
inventions relating to drugs, medicines, food and chemicals.
Based on the report of this committee, a bill was introduced in the Lok Sabha which however
lapsed. Thereafter, a 2nd amended bill was introduced and the same was referred to the Joint
Parliamentary Committee on whose recommendation the Patent’s Act of 1970 was eventually
passed. This legislation repealed the 1911 Act as far as patents were concerned, but retained
the provisions regarding designs. It finally came into effect on April 20, 1972, along with the
publication of the Patent Rules, 1972.
II. The Objective of the Patents Act, 1970
The Patent’s Act, 1970 was passed to regulate the law relating to Patents in India and make
sure that the same was in consonance with India’s unique circumstances. The main objective
with which patents are granted to encourage innovation and research and development in the
society, stimulate capital investment in the economy, to promote the development of
technologies and industries based on them. In the case of Bishwanath Prasad Radhey Shyam
v. Hindustan Metal Industries, the SC clearly enumerated the objective of patent law as:
“The subject of Patent Law is to encourage scientific research, new technology and industrial
progress. Grant of exclusive privilege to own, use or sell the method or the product patented
for a limited period, stimulates new inventions of commercial utility. The price of the grant of
monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the
fixed period of the monopoly passes into the public domain.”
As evident from the report of the Justice N Rajagopala Ayyangar committee, one of the major
reasons for revamping the patent law in India was to ensure that the grant of patents shouldn’t
interfere with a person’s basic need for medicines at affordable price. Prior to the patent’s act,
the major source of medicines were foreign countries.

The lack of indigenous medicines and their huge demand led to very high prices. It was the
external law that influenced the local law. Drug prices in India were amongst the highest in
the world. To resolve this, the Act granted only process patents for medicines or drugs so as
to ensure that the medicines reach even the poor sections of the society. This revolutionized
the Indian’s economic system by facilitating bulk production of drugs and selling them at a
cheap rate.
III. Main Features of the Unamended Patents Act, 1970
Elaborated definition of an invention
No product patents for substances intended for use as food, drugs and medicines including
the product of chemical processes under S. 5
Codification of certain inventions as non-patentable under S. 3 and Section 4
Mandatory furnishing information regarding the foreign application
Adoption of absolute novelty criteria in case of publication
Expansion of the grounds for opposition to the grant of a patent
Exemption of certain categories of prior publication, prior communication and prior use from
anticipation.
Provisions for the secrecy of inventions relevant for defence purposes
 Provision for use of inventions for the purpose of Government or for research or
instruction to pupils
 Reduction in the term of patents relating to the process in respect of substances capable of
being used as food or as medicine or drugs
 Enlargement of the grounds for revocation of a patent
 Provision for non-working; as a ground for compulsory licences, licences of right, and
revocation of patents
 Additional powers to Central Government to use an invention for purposes of government
including Government undertakings
 Prevention of abuse of patent rights by making restrictive conditions in licence agreement

This Act remained in force without any amendments for a period of 24 years without any
change till December 1994 following which an ordinance affecting certain changes in the Act
was introduced on 31st December 1994, which ceased to operate after six months.
IV. Amendments to the Patents Act, 1970
Patents (Amendment) Act, 1999
The First Amendment to the Patent’s Act, 1970 was made in 1999 with a retrospective effect
from 1st January 1995. This amendment brought in significant changes to the patent regime
in India by allowing product patents in the areas of drugs, pharmaceuticals and agrochemicals
which were earlier prohibited under the Act. The Act brought in amendments to Sections 5,
40, 64 and 118 of the Principal Act. It added a Sub-section 2 to Section 5 which enabled the
grant of product patents for medicines and drugs according to the manner specified in
Chapter IV-A. However, such applications were to be examined only after 31-12-2004. In
order to facilitate the grant of product patents for medicines and drugs, the amendment act
inserted Chapter IV-A containing Sections 24A to 24F.

Exclusive Marketing Rights (EMR) refers to the right to exclusively sell and distribute an
article in India and is contained under S. 24A of the amended act. The controller on receiving
an application for EMR shall determine whether the invention is not an invention under S. 3
of the principal act or is an invention for which patent cannot be granted under Section 4 of
the Principal Act.
If the application is not rejected, then the controller shall grant exclusive right to sell and
distribute for a period of five years or till the date of grant of a patent or the date of rejection
of application for the grant of a patent, whichever is earlier under S. 24B.
While Section 24C introduces the concept of compulsory licences in relation to EMR,
Section 24D provides that when the central government is satisfied that it is necessary or
expedient in the public interest to sell or distribute the article or substance by a person other
than a person to whom the exclusive right has been granted under sub-section (1) of section
24B, it may, by itself or through any person authorized in writing by it in this behalf, sell or
distribute the article or substance.
Additionally, the amendment omitted Section 39 of the Principal Act and according to altered
sections 40, 64 and 118 of the Principal Act. Additionally, it also included Section 157A
which authorizes the Central government to take adequate steps in the protection of the
security of India including non-disclosure of details of the patent application and revocation
of any patent granted.
Patents (Amendment) Act, 2002
Subsequent to the amendment in 1999, a second amendment to the Principal Act was made
through the Patents (Amendment) Act, 2002. It came into force on 20th May 2003 with the
introduction of the new Patent Rules, 2003 by replacing the earlier Patent Rules, 1972. The
objective behind this amendment was to fulfil India’s obligations under the TRIPS
Agreement. It extended the term of a patent from 14 to 20 years with respect to all the
inventions. It modified the definition of the term “invention” under S. 2 (1)(j). Under this
amendment, invention means a new product or process involving an inventive step and
capable of industrial application. Some of the salient features of the amendment act are listed
below
 Further codification of non-patentable inventions under Section 3 of the Act
 Provision for reversal of the burden of proof in case of process patents has been imposed
on the defendant under Section 104A
 Provisions of compulsory licences to meet public health concerns under Section 84 of the
Act.
 Deletion of the provision of the licence of right
 Introduction of a system of deferred examination under S. 11(b) of the Act
 Mandatory publication of applications after 18 months from the date of filing under S.
11(a) of the Act
 Provision for process patent for micro-organisms under S. 3(j) of the Act.
 Section 39 was reintroduced thereby prohibiting the Indian residents to apply abroad
without prior permission or first filing in India.
 Provision for parallel imports was introduced
 Section 117 provided for Bolar provision for the benefit of agrochemical and
pharmaceutical industry.
 Provision for exemption from infringement proceedings for use of a patented invention
for obtaining regulatory approval for a product based on that patented invention
 Provision to protect biodiversity and traditional knowledge.
Patents (Amendment) Act, 2005
The Patents Act, 1970 was finally amended by way of Patents (Amendment) Ordinance,
2004, which was later replaced by The Patent (Amendment) Act, 2005, and Patents
(Amendment) Rules, 2006 with retrospective effect from 1st January 2005. This amendment
was brought in finally complete India’s obligation under the TRIPS agreement regarding the
grant of pharmaceutical product patents. It added a new definition for “new invention” and
redefined “inventive step” as well.
Most importantly, the Patents (Amendment) Act 2005 deleted Section 5, which provided for
only a limited-term process patent protection for inventions in relation to food, drugs and
medicines. The amendment now provides for 20 years’ protection for all categories of
inventions except those excluded under Section 3 of the act. The salient features of the 2005
amendment act are

 Extension of product patents to all fields of technology including food, drugs, chemicals
and micro-organisms
 Deletion of the provisions relating to Exclusive Marketing Rights (EMRs).
 Introduction of a provision for enabling grant of a compulsory licence for the export of
medicines to countries which have insufficient or no manufacturing capacity to meet
emergent public health situations under S. 92A of the Act.
 Modification in the provisions relating to opposition procedures with a view to
streamlining the system by having both pre-grant and post-grant opposition in the Patent
Office
 Strengthening the provisions relating to national security to guard against patenting
abroad the dual-use of technologies.
 Rationalisation of provisions relating to timelines with a view to introducing flexibility
and reducing the processing time for patent application.

Conclusion
Thus, it can be concluded that today after three significant amendments, India’s patent regime
has complied with all the requirements of the TRIPS Agreement. Today, product patents are
available for pharmaceutical products under Section 3(d) of the Act. Subsequent to the
amendment in 2005, Section 5 of the Act which dealt with inventions where only methods or
processes of manufacture patentable has been omitted as well.
Thus, there exists a comprehensive patent regime in India which is compliant with
international standards. Following the 2005 amendment, the pharmaceutical sector in India
has seen a significant boost as well.
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