• Inventions (not discovery ) are the subject matter of

patents.

• In India, the Patent Act,1970 deals with the

patenting of invention.

• A person claiming to be the inventor, applies to the

Controller of Patents, for Patent Rights.

• The Controller checks the claim with respect to

novelty and usefulness of the idea and other
requirements of law.

• Person gets Patent Right for a certain number of

years.

• During this period, no one can use the invention

without an authorization from the person.
• WTO required its member States to
bring about several changes in their
patent laws by Dec31, 2004.

• India has made all required changes-

thus patent law today is very
different to that of early 1990.
 Functioning of Patent Act

• Under the Patent Act, 1970, the Govt. of

India has created the office of the Controller
of Patents.

• HO- Kolkata; Branch offices at Mumbai,

Delhi and Chennai.
Procedure on Receipt of application
• A patent is a monopoly right in the use of invention.
• Not all invention can be patented.
• The Act stipulates conditions.
• Application is referred by the Controller to the Examiner.
• Examiner checks the compliance with requirement of the
acts and with the earlier patents existing .
• Objections if any would be communicated to the applicant.
• If objections are removed the Controller advertises the
application in the Official Gazette. Invites public
objections if any.
• Then Patent is granted.
 Right of Patentee
• The person in whose favour a patent is
granted, is called a ‘Patentee’.

• He can deal with the patent right like any

other property. He can sell it, he grant a
license to use the patented property to
others, etc.

• In case of an infringement patentee can

move to court.
 What can be Patented?
• An invention has been defined as a ‘new product
or process involving an ‘inventive step, and
capable of industrial application.’
• Inventive Step- ‘inventor not obvious to a person
skilled in the art.’ (Not easily seen).
• An idea to qualify as an invention three
requirements
1. Novelty or inventiveness (new thing)
2. Non- obviousness (not easily seen)
3. Usefulness (should be fulfilled)
Sec 3 Inventions which cannot be patented
The different clauses- p 141
• An invention which is frivolous (not
serious) or which claims anything obviously
contrary to well established natural laws……
• The mere discovery of a scientific
principle or the formulation of a n abstract
theory; or discovery of any living thing or
non-living substance occurring in nature;
• The mere discovery of any new property or
new use for a known substance or of the
mere use of the known process, machine or
apparatus, unless such known process
results in a new product or employs at least
one new reactant.
• A substance obtained by a mere
admixture resulting only in the
aggregation of the properties of the
components there of or a process for
producing such a substance.

• The mere arrangement or re-

arrangement or duplication of known
devices, each functioning
independently of one another, in a
known way.
Sec 3- inventions cannot be patented-

h) A method of agriculture or horticulture.

i) Any process for the medicinal, surgical, curative, prophylactic

diagnostic, therapeutic or other treatment of human beings or any
process for a similar treatment of animals, to render them free of
disease or to increase their economic value or that of their products.

j) Plants and animals in whole or any part thereof, other than

microorganisms but including seeds, varieties and species and
essentially biological processes for production or propagation of
plants and animals.

Eg-

Using sprinkler is a method of farming-

To a Doctor for a process of Open Heart Surgery
no patent can be granted.
 Product vs Process Patent
• Patent Act 1970 has made a distinction b/w a
product and a process patent.

• An invention can be either a process or a product.

• Product – a watch

• Process- making of antibiotics- itself is an

invention

• In the case medicines and chemicals, one would

have a product and process patents.

• Indian Law had not permitted product patents to

be given in the case of certain products.
• Sec 5- provided as follows

1) In the case of invention-

a) claiming substances intended for use, or
capable of being used, as food or as medicine or
drug, or
b) relating o substances prepared or produces
by chemical processes (including alloys, optical
glass, semi conductors and inter metallic
components)
no patent can be granted in respect of claim
for the substances themselves, but claims for the
method or processes of manufacture shall be
patentable
• Even if a person has produces a new and useful
medicine or chemical product, he will not be given
a patent for it.

• If a person come up with a new process, whether it

is for making a new product or for an existing
product, he can claim a patent for the process.

• Indian Industry could innovate and come up with a

different process to make a product and then
manufacture it.
 Pharmaceuticals
• The inclusion of medicine and drug in the list of un
patentable products was to protect public health
and to make medicines available for everyone.
• Once the composition of the drug was determined
, it become relatively easier to workout a
different processes of making the same product.
(Reverse Engineering)
• Availability of low priced medicines in India.
• Indian State had not allowed product patents- the
pharmaceutical industry in the developed world
was aggrieved with Indian Law.
• Discussions were held in GATT- to do away with
the distinction b/w product and process- 10 years
term- Dec 31, 2004.
• Within the Patents Act , seeds and organisms
could not be patented- became concern of TRIPS-
signatories of the GATT were given a choice to
amend their patent law or to create a new law.

• The Indian State enacted a separate act, titled the

‘Biological Diversity Act, 2002’ to protect the
rights of the breeders and innovators of new forms
of seeds and plants.

• The period of Patent right for all inventions has

been raised to 20 years. (1970- 14yrs; process- up
to 5yrs)
• Summary:
• 1. A patent is monopoly right in the use of an
invention.
• 2.An application for patent is submitted to the
controller of patents. The examiners check if
the invention has already been claimed by
some other person.
• 3. The patentee can sell, assign or license the
right in patent.
• 4. For getting a patent, invention should be
non-obvious and useful.