Intellectual Property

Right(IPR)

Introduction
 What is Right?

 An entitlement to something, whether to concepts like justice and due process or

to ownership of property or some interest in property, real or personal. These

rights include: various freedoms; protection against interference with enjoyment

of life and property; 

 In legal terms a right is an interest recognised and protected by the State and

enforceable through the court of law. A right is enforceable only to the extent it

is protected by the state. In this generic sense a legal right may be defined as

any advantage or benefit conferred upon a person by a rule of law.

 What is property?

 “Property” means property of any kind, whether movable or

immovable, tangible or intangible, and includes any right or interest
in such property.

 An owner of the property has the right to consume, sell, rent,

mortgage, transfer, exchange or destroy his property, and/or to
exclude others from doing these things. 
 What is Intellectual Property Rights?
 Human beings are superior from others because they possess
intellect. Creative genius of human being creates intellectual
property. Since it essentially a creation of mind, therefore, it is
called Intellectual Property.
 The owner's right over these properties was accepted and is
known as an Intellectual Property Rights. A new set of laws
called Intellectual Property Right Laws, were enacted to protect
these property rights. These I.P.R. laws provided a protection to
the owners under different categories and names like Patents,
copy right, Industrial designs, Trade- Marks etc.
 Introduction
Introduction on
on Patent
Patent

 The Patents Act 1970, along with the Patents Rules 1972, came into force on 20 th April 1972,
replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the
recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala
Ayyangar. One of the recommendations was the allowance of only process patents with
regard to inventions relating to drugs, medicines, food and chemicals. Later, India became
signatory to many international arrangements with an objective of strengthening its patent
law and coming in league with the modern world. One of the significant steps towards
achieving this objective was becoming the member of the Trade Related Intellectual Property
Rights (TRIPS) system.

 Significantly, India also became signatory of the Paris Convention and the Patent
Cooperation Treaty on 7thDecember 1998 and thereafter signed the Budapest Treaty on
17th December 2001
 Meaning of patent
 The word patent originates from the Latin word Patere, which means “ to lay open” . (i.e., to

make available for public inspection). 

 A patent is a set of exclusive rights granted by a state (national government) to an inventor or

their assignee for a limited period of time, excluding others from making, using, selling,

importing the patented product or process producing that product for these purposes.

 Exclusive rights implies that no else can make ,use, manufacture or market the invention without

the consent of the patent holder. 

 A patent in the law is a property right and hence can be gifted, inherited, assigned, licensed or

sold.
Cont………….
 The patent right is territorial in nature and inventors/their assignees will have to file
separate patent applications in countries of their interest. 

 There are two kinds of patents namely process and product patent.

 A product-patent system means that the end result of the product is patented and not the
process by which it is made. 

 India follows both the product and process-patent systems. For the pharmaceutical, drug,
food and chemicals industries, we follow process patents, while for all other industries the
product-patent system.

 In India grant of process patents was limited to food and drugs.

 However with effect from January 2005 the said limitation is removed. 
 History of patent
 The first Indian patent law was first promulgated in 1856 by British Government, that was modified
from time to time.

 The first patenting related act in India was passed in 1911 by the name of Patents and Designs Act,
1911.

 Later after independence the Patents Bill was unsuccessfully introduced before the Parliament in
1949 & 1965 and finally the bill was passed in the year 1970 and the act came into force on 20th
April 1970.

 The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) and the Patents
Rules, 2003.

 The act has now been radically amended to become fully compliant with the provisions of TRIPS. 

 The patents act has been amended several times in 1974, 1985, 1999, 2002 and in 2005 and the rules
have been amended in 2006.
 Amendment of Patent Act 2002
 A few important aspects of the Patents amendment act 2002
are mentioned below
 Hastening the process of patent grant, a patent is granted
within approximately two years of filing an application.
 The inventor had to fill a declaration of inventorship. The
amendment also made the Indian patent act GATT
compatible.
 Amendment of Patent Act, 2005
 Some of the major features of the Patents amendment act
2005 are
 Emphasis on Indigenous manufacturers
 Both pre-grant and post-grant opposition avenues
 In order to prevent "ever greening" of patents for
pharmaceutical substances, provisions listing out exceptions
to patentability have been suitably amended so as to remove
all ambiguity as to the scope of patentability.
 Product patent has been included in all fields of technology
(that is drugs, food and chemicals)
 Why should One apply for Patent
 Encourage inventions by promoting their protection and
utilization so as to contribute to the development of
industries, which in turn, contributes to the promotion of
technological innovation and to the transfer and
dissemination of technology.
 Patents can also be used to block others from entering your
product category.
 To build a patent portfolio means the more patents that
you have the harder it is for someone else to challenge you
in the market.
 Patentable inventions
 The following criteria must be met by a product to be
patentable.
 Novelty:- The matter disclosed in the specification is not
published in India or elsewhere before the date of filing of the
patent application in India.
 Inventive step:- The invention is not obvious to a person
skilled in the art in the light of the prior
publication/knowledge/ document.
 Industrially applicable :-The invention must have industrial
applicability
 What is an Invention?

Sec.2(1)(J)

“Invention” means a new product or process involving an

inventive step and capable of industrial application
 Invention must not

 Be in prior public knowledge or prior public use within India

 Have been claimed before in any specification in India

 Have been published in India or elsewhere

 Inventive step

 involves technical advance as compared to the existing

knowledge or
 have economic significance or both and
 makes the invention not obvious to a person skilled in
the art .
 Industrial Application

 Invention is capable of being made or used in any kind of

industry.
 Inventions which lack industrial applicability are known
as utility models. They are not protected in India.
 Utility means quid pro quo which means "something in
return of something" or "something in exchange of
something" or simply "something for something".
 What is not Patentable

 The following are Non-Patentable inventions within the meaning of the Act:

Section 3(a)
Frivolous inventions

 Inventions contrary to well established natural laws

EXAMPLE:
Machine that gives more than 100% performance

Perpetual machine
 What is not Patentable cont..........

Section 3(b)
Commercial exploitation or primary use of inventions, which is
Contrary to:
 Public order or Morality
 Which causes serious prejudice to human, animal or plant life or health or
to the environment.
EXAMPLE:
 Gambling machine, – Device for house-breaking, Biological warfare
material or device, weapons of mass destruction, Terminator gene
technology,
Section 3(b) cont…….

Excludes patents on
 GMOs – exploitation of which could be contrary to public order or
morality or prejudicial to human, animal or plant life or health or
to the environment

Effect : Only genetically modified micro-organisms (GMOs)

which do not fall under section 3 (b) are patentable. (A GMO is
an organism whose genome has been altered by the techniques of genetic engineering so that its DNA contains
one or more genes not normally found there. Note: A high percentage of food crops, such as corn and soybeans,
are genetically modified.)
Section 3(c)
Excludes patents on
 Mere Discovery of a Scientific Principle or formulation of an Abstract Theory or
discovery of any living thing or discovery of non–living substance occurring in nature
 Examples
 Newton’s Laws
 Superconducting Phenomenon as such
 Property of certain material to withstand mechanical shock
 Discovery of micro-organism
 Discovery of natural gas or a mineral

Naturally occurring Micro-organisms

result
Genetically modified microorganisms (GMOs) are however, patentable.
 What is not Patentable cont..........

Section 3(d)
 Mere discovery of any new property or new use for a known substance or of the mere use
of a known process, machine or apparatus, unless such known process results in a new
product or employs at least one new reactant.

 Examples

 New use of Aspirin for heart ailments,

 Mere new uses of Neem

 What is not Patentable cont..........
Section3 (d) cont…

For the purposes of this clause,

 salts, esters, ethers, polymorphs,
 metabolites, pure form, particle size,
 isomers, mixture of isomers,

 complexes, combinations and other derivatives of known substances shall be considered to be the
same substance, unless they differ significantly in properties with regard to efficacy.

Salts, esters, ethers, polymorphs, metabolite, pure forms, particle size, isomers, complexes,
combinations and derivatives of a known substance with enhanced efficacy are patentable
Examples
 Crystalline forms of known substance
 What is not Patentable cont..........

Section 3 ( e )
Substance obtained by mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance
examples
Combiflam [Paracetamol (Antipyretic) + Brufen (analgesic)]
Solution of sugar and color additives in water to form a soft drink
Except,
A mixture resulting into synergistic properties of mixture of
ingredients however, may be patentable - Soap, Detergents,
lubricants etc
Cont………..
Section 3 ( e )
Substance obtained by mere admixture resulting only in
the aggregation of the properties of the components
thereof or
A process for producing such substance are not
patentable
except
Synergistic formulations are patentable (Synergetic is often
used to describe the effect of drugs working together — where one drug increases
the other's effectiveness).
 What is not Patentable cont..........
Section 3 ( f )
Mere arrangement or re-arrangement or duplication of known
devices, each functioning independently of one another in a known
way

Examples:
A Bucket fitted with torch,
An Umbrella with fan
A Clock and radio in a single cabinet
A flour-mill provided with sieving
 What is not Patentable cont..........
Section 3 ( h )
Method of Agriculture or Horticulture
examples
of an improved cultivation of algae ,
producing new form of a known plant,
preparation soil.
But,
Agricultural Equipments are patentable
 What is not Patentable cont..........

Section 3 ( i )
Any process for medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of
human beings or a similar treatment of animals to render them free of disease or to increase their
economic value or that of their products.

Example
 Removal of dental plaque and carries
 Surgical processes
 Processes relating to therapy
 Method of vaccination
 Blood transfusion

However ,

 Treatment performed on tissues or fluids permanently removed from the body

 Surgical, therapeutic or diagnostic Apparatus or instruments are patentable
 What is not Patentable cont..........

Section 3 ( j )
The followings Excludes patents on
Plants & animals in whole or any part thereof other than micro- organisms, but
including seeds, varieties and species and essentially biological process for production
or propagation of plants & animals.
 Plants & animals in whole
 Parts of plants & animals
 Seeds
 Varieties & species
 Essentially biological processes for propagation or production of the animals &
plants
 What is not Patentable cont..........
Section 3 ( k )
 mathematical method or
 business method or
 algorithms or
 computer programme
example
 Computer program by itself or as a record on a carrier
Except
 New calculating machine
 combination of hardware and software is patentable
 What is not Patentable cont..........

Section 3 ( l )
These following subject-matters fall under the copyright protection.

A literary, dramatic, musical or artistic work or any other aesthetic creation

including cinematographic work and television productions.
 What is not Patentable cont..........
Section 3 ( m )
A mere scheme or rule or method of performing mental act or method of playing game

examples:

Scheme for learning a language

Method for solving a crossword puzzle,
Method of learning a language
Method of teaching /learning
Except

Novel apparatus for playing game or carrying

out a scheme is patentable

 What is not Patentable cont..........

Section 3 (n)
Presentation of information
Examples
Any manner or method of expressing information whether by
spoken words
Visual display
symbols
diagrams
Information recorded on a carrier
 What is not Patentable cont..........

Section 3 (o)
 Topography of integrated circuits

Example
 Mask works - circuits layout means is a two or three-dimensional layout
or topography of an integrated circuit (IC or "chip"), i.e. the
arrangement on a chip of semiconductor devices such as transistors and
passive electronic components such as resistors and interconnections.
 What is not Patentable cont..........

Section 3 (p)
Inventions which are

Traditional Knowledge or an aggregation or duplication of known properties of traditionally

known component or components.

Examples:
Traditional Knowledge already in public domain
Wound healing property of Haldi
except
Any value-addition using Traditional Knowledge leading to a new process or
product which is novel with inventive step and industrial applicability, Extraction
of Azadirachtin from Neem can be patented
 What is not Patentable cont..........

Section 4
Inventions falling within Section 20(1) of the Atomic Energy Act,
1962 are not patentable.
consequence:

 Inventions relating to compounds of Uranium, Beryllium,

Thorium, Plutonium, Radium, Graphite, Lithium and more

as notified by Central Govt. from time to time.
 who can Apply for patents
 An application for a patent for an invention may be made by any of the
following persons either alone or jointly with another

 Any person claiming to be the true and first inventor of the invention.

 Any person being the assignee of the person claiming to be the true and
first inventor in respect of the right to make such an application.

 By the legal representative of any deceased person who immediately before

his death was entitled to make such an application.
 Patent Office

The Patent Office, under the Department of Industrial Policy & Promotion,

Ministry of Commerce & Industry, performs the statutory duties in connection

with the grant of patents for new inventions and registration of industrial

designs. 
 Head Office – Kolkata Branch offices at
 Mumbai
 Delhi
 Chennai

 The Patent Office comes under the Ministry of Commerce & Industry. Each of the

branch offices have their own fixed territory and accept application forms from areas

lying within its geographical limits.

 Territorial Jurisdiction
Patent Offices and Its Head Office.
 Kolkota: (Head Office): West Bengal, Bihar, Jharkhand, Uttarakhand, Odisha, Chhattisgarh,
Assam, Meghalaya, Mizoram, Tripura, Arunachal Pradesh, Manipur, Nagaland, Sikkim and
Andaman and Nicobar Islands.

 Mumbai : Gujarat, Maharashtra, M.P. Goa, Chhattisgarh, the Union territories of Damon and
Diu and Dadra and Nagar Haveli.

 Chennai: Andhra Pradesh, Telengana, Kerala, Tamil Nadu, Karnataka, Puducherry and
Lakshadweep.

 New Delhi: Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar
Pradesh, Chandigarh and Delhi.
Layout of patent
Cont……..

 Step 1:
 Write down the invention (idea or concept) with as much details as
possible Collect all the information about your invention such as:
 Area of invention
 Description of the invention what it does
 How does it work
 Advantages of the invention Ideally, if you have worked on the
invention during research and development phase you should have
something call lab record duly signed with date by you and
respective authority.
 Step 2:
 include drawings, diagrams or sketches explaining working of
invention
 The drawings and diagrams should be designed so as to explain
the working of the invention in better way with visual
illustrations. They play an important role in patent application.
 Step 3:
 check whether the invention is patentable subject matter
 All inventions may not be patentable, as per Indian patent act
there are certain inventions that are not patentable explained in
detail in(inventions not patentable)
 Whereas the complete patent specification may contain:
  Title
  Abstract
  Detailed Description
  Drawings (where necessary)
  Sample or Model (if required by the examiner)
  Enablement and Best Mode
 Claims
 Deposit (Microorganisms), if in case needed
 Patent Application Forms:

 1. Form 1 – Application for the grant of patent;

 2. Form 2 – Provisional or Complete Specification;
 3. Form 3 – Statement and undertaking by the applicant;
 4. Form 5 – Declaration as to Inventorship; and
 5. Form 26 – Authorization of patent agent, in case, filed through a patent
agent.
 Proof of right if the application is made by the assignee or by way of separate
assignment deed.(proof of right may be submitted within three months of
application)
 In case of provisional specification the complete specification must be filed
within 12 months
 Types of patent application
 Type of patents:-

 Four types of patents are granted under the patents Act 1970.

 Ordinary patents

 Patents of addition

 Convention application with priority date, claiming on the basis of filing in

convention countries

 National phase applications

 Form of application
 Every application for a patent shall be for one invention only and shall be made in the
prescribed form and filed in the patent office.

 Every application under this section shall state that the applicant is in possession of
the invention and shall name the owner claiming to be the true and first inventor; and
where the person so claiming is not the applicant or one of the applicants, the
application shall contain a declaration that the applicant believes the person so
named to be the true and first inventor.

 Every such application (not being a convention application) shall be accompanied by

a provisional or a complete specification
 Provisional Specification
Provisional Specifications:
 It is a document in a prescribed form containing a description of essential features
of the invention. Where an application for a patent is accompanied by a
provisional specification, a complete specification shall be filed within twelve
months from the date of filing of the application, and if the complete specification
is not filed the application shall be deemed to be abandoned. The provisional
specifications normally contains following parts:
 Title
 Written Description
 Drawings, if necessary
 Sample Or Model, if required PROVISIONAL AND COMPLETE
SPECIFICATION
Cont……..
Request for Examination
 Application is examined on request
 Request for examination can be made either by the applicant or by a third party
 A period of 48 months, from the date of filing, is available for making request for
examination.
Issue of FER
 A period of 1 to 3 months is available to Examiner to submit the report to the
Controller
 1 month’s time available to Controller to vet the Examiner’s report
 First Examination Report (FER) containing list of the objections is issued within
6 months from the date of filing of request
 Complete specification
Complete Specification:

A complete specification is document in a prescribed form and

shall:- 1. Fully and particularly describe the invention and its
operation or use and the method by which it is to be performed. 2.
Disclose the best method of performing the invention which is
known to the applicant and for which he is entitled to claim
protection. 3. A claim or claims defining the scope of the invention
for which protection is claimed. The complete specifications have
the following parts: Title Abstract Written Description Drawings, if
necessary Sample or model, if required Enablement and best mode
Claims Deposit (microbes)
 Fees for grant of patents
 1)The fees payable under section 142 in respect of the grant of patents
and applications therefore, and in respect of other matters for which
fees are required to be payable under the act shall be as specified in
the first schedule.

 2)The amount of the fees varies from 1000-4000.

 3) The fees, payable under the act may either be paid in cash or may
be sent by bank draft or cheque payable to the controller of patents.
 Examination of the Application
 When the complete specification has been submitted in respect of an application for a patent, the application

and the specification shall be referred by the Controller to an Examiner to check the formal requirements

before accepting the application and the fee in respect of the following matters, which is done immediately,

namely:-

 Whether the application and the specification are in accordance with the requirements of this Act .

 Issue of application number and the cash receipt – this is done the same day

 In case of receipt of application by post, cash receipt, application number is sent by post within 2- 3 days.

 Whether there is any lawful ground of objection to the grant of the patent under this Act with regard to the

application. and any other matter which may be prescribed. The Examiner to whom the application and the

specification relating thereto are referred shall ordinarily make the report to the Controller within a period of

eighteen months from the date of such reference.

 Cont……
Response from the Applicant
 12 months’ time, from the date of issue of FER, is available to the applicant to meet the objections
 If objections are met, grant of patent is approved by the Controller – within a period of 1 month
Pre-grant Opposition
 After publication, an opposition can be filed within a period of 6 months
 Opportunity of hearing the opponent is also available.
Examination of Pre-grant Opposition Opposition (documents) is sent to the applicant
 A period of 3 months is allowed for receipt of response.
Consideration of Pre-grant Opposition
 After examining the opposition and the submissions made during the hearing, Controller may –
Either reject the opposition and grant the patent – Or accept the opposition and modify/reject the
patent application,
 This is to be done within a period of 1 month from the date of completion of opposition proceedings
 After Examination Procedures
Publication:

 Application is kept secret for a period of 18 months from the date of filing

 In 19th month, the application is published in the official journal – this journal is made
available on the website weekly

 Applicant has an option to get his application published before 18 months also

 In that case, application is published within one month of the request.

Request for Examination

Application is examined on request

Request for examination can be made either by the applicant or by a third party

A period of 48 months, from the date of filing, is available for making request for examination.
 Grant of a Patent

 A certificate of patent is issued within 7 days

 Grant of patent is published in the official journal
 Flow chart of grant of Patent
Filing of application provisional/
Complete

after18 months of Patent

Publication of Application
document

Request for Examination Within 48 months from F.D

Third Party
Issue of First Examination Report
demonstration
All Examination to be
GRANT OF PATENT
completed within 12 months

DECISION OF CONTROLLER
opposition
Appeal
within 12 months

APPELLATE BOARD Revocation or Amendments

 Patent Number – The patent number is assigned when the patent is granted.

 Date of Patent – The date of the patent is the date that the patent was issued, not the date that the patent
application was filed.  Before 1995, a patent term was 17 years from the date of the patent.  In 1995, the law
changed so that the patent term was 20 years from the filing date .

 First Named Inventor – Most patents refer to the first named inventor.  The first named inventor does not have
any more rights to the patent than the other inventors.  According to law they all have an equal share regardless
of how much they contributed to the invention.

 Title – The title of the patent describes the subject matter in the patent.

 Assignee – The assignee is the owner of the patent.  According to U.S. patent law, the inventors are the initial
owners of the patent, but their rights can be assigned to another.  Companies will usually require their
employees to assign the rights of any future inventions to the company that are  reasonably related to the
employee's job. 

 Application Number – When a patent application is filed, the patent office assigns a serial number to the
application.
 Filing Date – This is the date that the patent application was filed.  The filing date is usually also
the priority date.  During examination, the patent examiner cannot use any reference that discloses
similar technology to the claimed invention after the filing date.  

 Search Fields – The patent office uses a classification system to categorize technologies.  The
examiner will typically search Indian classes and international classes related to the invention. 

 Cited References – Anyone involved in the preparation of a patent application is required to

provide references that may affect the patentability of the invention.  Both patent and non-patent
references are listed.  Typically, foreign patents and U.S. patent publications are also included in
the cited references. 

 Credits – The patent examiner and the patent attorney/firm may be listed on the granted patent to
credit them for their work.

 Abstract – An abstract is designed to help the readers quickly determine the subject matter of the
patent.