Law- Patent Act

8/6/2019 Law- Patent Act

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Patents

Inventions are the subject matter of patents. In India, the PatentsAct, 1970, deals with the patenting of inventions. The boardarrangement is as follows: a person claiming to be the inventorapplies to the controller of patents, for patent rights. Thecontroller checks the claim with respect to noveity andusefulness of the idea and other requirements of law. If theapplication is successful, the person gets a patient right years.During this period no one can use the invention without anauthorisation from the person.

Functioning of the Patent Act

Under the Patents Act, 1970, the government of India has createdthe office of the Controller Of Patents. The head office is atKolkata and there are branch offices at Mumbai, Delhi andChennai. An application for the grant of a patent can be made by an inventor or any other person to whom the inventor has given

the right. For example, a scientist working for a research anddevelopment laboratory may had assigned his rights in hisinventions, to his employer. In such a case, the employer willmake the patent application. The application is a detailed oneand it requires the describing of the invention in all its aspects,including its newness, use and best method of performance. Theapplication contains descriptions and drawings to aid thedescription.

Rights of Patentee

The person in whose favour a parent is granted is called apatentee. He can deal with the patent right like any otherproperty. He can sell it to another person. He can grant a licens



to use the patent property to others. He can also assign suchproperty to another person. The patent holder has the exclusiverights to make, use, exercise, sell or distribute the invention inIndia. Any use without license or other authorisation from the

patent holder, is an infringement. The patent holder can movethe court to restrain the violator and claim damages.

W hat can be Patented?

We now come to the important question of what is an inventionand what can be patented. An invention had been defined as a¶new product or process involving an inventive step and capable

of industrial application·. To amplify, an ¶inventive step· has beendefined as an ¶invention not obvious to a person skilled in theart·. Thus, for an idea to qualify as an invention, the threerequisites of novelty or inventiveness, non ² obviousness andusefulness should be fulfilled. This requirement has beenreiterated negatively by section 3, by mentioning the inventionswhich cannot be patented. The different clauses state as follows:

y An invention which is frivolous of which claims anything

obviously contrary to well established natural laws;y The mere discovery of a scientific principle or the

formulation of an abstract theory; or discovery of any livingthing or non living substance occurring in nature;

y The mere discovery of any new property or new use for aknown substance or of the mere use if a known process,machine or apparatus, unless such known process resultsin a new product or employs at least one new reactant;

y A substance obtained by a mere admixture resulting only inthe aggregation of the properties of the components thereof or a process for producing such substances;

y The mere arrangement or re-arrangement or duplication of known devices, each functioning independently of oneanother, in a known way;



While deciding disputes or novelty, non-obviousness andusefulness, novelty can be the hardest to settle on. An inventordoes not produce an invention from nowhere. Every person worksonly with the existing ideas, materials, machines and substances.

Thus, for example, it is electricity that is used to create a heater.A heater is the basis upon which the idea of an oven is based.

The idea for a microwave works upon the idea of an oven. Toimprove cooking in a microwave, it is further developed and amoving table at the bottom of the microwave is added to makeexposure uniform. Each person works with the existing thing.

Thus, when one has produces a novel thing and when he hasnot, required an examination of the facts. The courts have goneover these questions on several occations.

Product vs Process Patent

The patent Act,1970 has made a distinction between a productand a process patent. The definition of an invention is-¶newproduct or process involving an inventive step and capable of industrial application .Thus an invention can be of either aprocess or of a product .At times , only the product is of value

and relevance. Thus ,in the case of watch ,cycle ,car or television,it is the product which is the invention .Similarly ,a newantibiotic is a product invention ,which has valuable therapeuticproperties. Thus a patent could be claimed on such a product.However in the case of antibiotics ,which essentially ,arechemical substances they are prepared through a chemicalprocess. Without the invention of the process ,the antibioticscannot be made .Thus ,in the case of chemical substances, theprocess of making the substance is in itself ,an invention .As aresult , in the case of medicines and chemicals , one would havea product patent as well as a process patent.

The Indian law has not permitted product patent to be given inthe case of certain products Section 5 provided as follows:



¶Inventions are only methods or processes of manufacturepatentable ²

1) In the case of inventions

a) claiming substances intended for use or capable of being usedas food or as medicine or drug, or

b) relating to substances prepared or produced by chemicalprocesses(including alloys, optical glass, semi-conductors andinter-metallic compounds)

No patents shall be granted in respect of claim for the substancesthemselves but claims for the methods or processes of manufacture shall be patentable.·

In other words, even if a person has produced a new and usefulmedicine or chemical product, he will not be given patent for it.However, if a person comes up with a new process, whether it isfor making new product or for existing product, he can claim apatent for the process .This was a deliberate move of the IndianState.

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Law- Patent Act