Cameron Miranda
India's patent laws have been amended several times to align with international standards, with the most notable changes being the introduction of the Patents Act in 1970 and India's signatory to the TRIPS agreement. The Patents Act defines an 'invention' as something that is new, useful, and capable of industrial application. Patents can be granted for products, processes, or methods, but they must meet the criteria of novelty, non-obviousness, and industrial applicability. Ordinary patents are filed directly with the Indian Patent Office, while convention applications claim priority from a foreign application. Software code itself is not patentable, but computer-implemented inventions with technical improvements may be eligible. Patents are territorial rights, so legal action against infringement can only be taken in the country where the patent was granted. India also has specific exclusions for patentability, including seeds and plant varieties, and inventions that are frivolous, violate natural laws, or are harmful to public order, health, or the environment.
| Characteristics | Values |
|---|---|
| Patent duration | 20 years from the date of filing the application |
| Patent scope | Territorial; applicable only in the country where it has been granted |
| Types of patents | Utility, design, and plant |
| Patentable inventions | Products, processes or methods, computer-implemented inventions with technical improvements, modifications to existing products or processes |
| Non-patentable inventions | Creations that harm public order, morals, health, or the environment, or are deemed trivial, abstract ideas, natural phenomena, certain scientific theories, business ideas, literary, dramatic, musical, or artistic works |
| Patent eligibility criteria | Novelty, inventive step, industrial application, non-obviousness |
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What You'll Learn
Pharmaceutical and Biotech patents
India's pharmaceutical patent landscape has had a significant impact on innovation, drug access, and public health, with the country becoming a global leader in the pharmaceutical industry. The country's generics industry has made affordable medications available worldwide, and it supplies over 50% of Africa's requirement for generics, ~40% of the US demand, and ~25% of all medicine in the UK.
The Indian Patents Act of 1970 was a turning point for the country, initially recognizing only the methods of drug production for patenting, with a protection period of seven years. However, it was later recognized that this patent law benefited foreigners more than Indians, curbing innovation and inventiveness within the country. As a result, the patent law was reviewed by the Tekchand Committee and the Ayyangar Committee, with the latter recommending that patents be granted only for chemical substances and inventions relating to food and medicine.
Following India's membership in the World Trade Organization (WTO) and compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, the country transitioned to a dual system of process and product patents, extending protection to 20 years. The TRIPS agreement, which came into effect in 1995, mandated significant changes to India's patent system. The first amendment was the Patents (Amendment) Act, 1999, which provided pipeline protection until the country started granting product patents for pharmaceutically-based inventions. This amendment introduced the grant of Exclusive Marketing Rights (EMRs) on patents.
The Indian Patents Act, 1970, as amended in 2005, provides patent protection for pharmaceutical products and drugs, but only for new chemical entities. This means that a new form of a known substance, a new property or use for a known substance, and the mere use of a known process are not patentable and are not considered distinct inventions. To be patentable, inventions using known substances must demonstrate a significant increase in efficacy.
Compulsory licensing is another important aspect of India's pharmaceutical patent law. Under the Indian Patent Act, the government can mandate a generic drug maker to manufacture inexpensive medicine in the public interest, even if a patent on the product is still valid. This provision is intended to protect public health interests and ensure reasonable pricing for medications.
While India's pharmaceutical patent laws have evolved significantly over the years, there are still concerns regarding the patentability of certain substances and the subjectivity in decision-making. Additionally, biotechnology firms have expressed uncertainty about the patentability of biomolecules and the requirements for disclosing the geographical origin and source of biological materials used for inventions.
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Patents for products, processes or methods
Patents can be granted for products, processes or methods in India. However, the invention must meet the criteria of novelty, non-obviousness, and industrial applicability. The patent law in India has been amended several times to encourage innovation and bring it in line with international standards.
To obtain a patent in India, the invention must be new and useful, relating to a patentable subject matter, and meet the criteria for patentability. The patent law in India specifically excludes certain inventions from protection, such as natural phenomena, abstract ideas, business methods, algorithms, and fundamental knowledge. Inventions that may endanger public health, safety, or the environment are also excluded.
Products that can be patented in India include chemical, biotechnology, food processing, drugs, and pharmaceuticals. The 2005 amendment to the Patents Act extended product patents to all fields of technology, including food, drugs, chemicals, and microorganisms. However, it is important to note that business ideas alone cannot be patented, but if they involve a novel, non-obvious method, they may qualify for patent protection.
Processes that can be patented in India include computer-implemented inventions with technical improvements and modifications to existing processes. For software to be patented, it must go beyond abstract algorithms and solve a specific technical problem. Medical methods must show specific therapeutic use and cannot be related to methods for medical diagnosis, treatment, or surgery for humans or animals.
Methods that can be patented in India include computer-implemented inventions with technical improvements and modifications to existing methods. However, mere schemes, rules, or methods for performing mental acts or playing games are excluded from patent protection. The presentation of information in any manner is also not patentable under the Indian patent law.
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What is not patentable
India's patent laws are governed by the Patents Act of 1970, which outlines the scope of what can and cannot be patented in the country. While the Act provides for patent protection for inventions that are new and useful, there are certain exclusions and limitations.
Some categories of inventions are explicitly excluded from patent protection under Indian law. These exclusions are outlined in Sections 3 and 4 of the Patents Act, which serve as a filter to determine patent eligibility. Here are some key areas that are not patentable in India:
- Natural Phenomena, Abstract Ideas, and Fundamental Knowledge: Indian patent laws exclude natural phenomena, abstract ideas, and fundamental knowledge from patent protection. This means that discoveries or concepts that are inherently part of nature or lack a tangible application cannot be patented.
- Creations Harmful to Public Order, Morals, Health, or the Environment: Any invention or creation that could potentially cause harm to public order, morals, health, or the environment is not eligible for patent protection. This exclusion ensures that patented inventions do not negatively impact society or the natural world.
- Trivial Inventions or Mere Variations: Indian patent law does not protect trivial inventions or mere variations of existing products or processes. An invention must demonstrate a significant inventive step beyond what is already known or available.
- Agricultural and Horticultural Methods: Agricultural and horticultural methods and processes are excluded from patent protection in India. This exclusion includes plant varieties, seeds, and biological processes for their propagation, as outlined in Section 3(j) of the Act. However, microorganisms are an exception and can be patented.
- Methods for Medical Diagnosis, Treatment, or Surgery: Methods specifically related to medical diagnosis, treatment, or surgery for humans or animals are not patentable. This exclusion ensures that medical practices and procedures remain accessible and are not restricted by patent monopolies.
- Software Code: While software code itself is not patentable in India, computer-implemented inventions that solve technical problems or improve existing processes may be eligible for a patent. The key distinction is between the code itself and the innovative application or solution it provides.
- Business Ideas: Business ideas alone cannot be patented in India. However, if a business idea incorporates a novel, non-obvious method or process, it may qualify for patent protection. The idea must demonstrate a unique and inventive step beyond standard business practices.
These exclusions outlined by Indian patent law help guide inventors, entrepreneurs, and innovators in understanding the boundaries of patent protection in the country. By defining what is not patentable, these laws encourage the development of novel, useful, and socially beneficial inventions that can drive progress and economic growth.
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The patent application process
Once the novelty of the invention is established, the application must be drafted with precise technical details and filed with the Indian Patent Office, either online or manually, along with the requisite fees. The application will then be examined by the patent office for compliance with patent laws and assessed for its inventive step and industrial applicability. This stage may involve responding to objections raised by the examiner, which may require expert legal support.
After the application has been reviewed and approved, it will be published in the official patent journal, generally after 18 months of filing. However, if one wishes to get it published earlier, a request can be made in Form 9 for early publication. Every application filed for protection will be examined before a patent is granted, and the applicant may request an early examination by submitting Form 18. Once the application is filed, it is transferred to the patent officer, who will examine the application to ensure it is in accordance with the patent act and rules. The patent officer will conduct a thorough search, analyse the relevant technology, and communicate any objections.
To obtain patent protection in multiple countries, each country must be applied to individually unless using the Patent Cooperation Treaty (PCT), which allows for an international patent application to be filed once and applied to a large number of countries. However, the PCT remains discretionary to the individual patent office after the application is filed. A patent in India lasts for 20 years from the date of filing the application and provides the inventor with exclusive rights to their invention.
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Patents for computer-implemented inventions
In India, patent laws are governed by the Patents Act 1970 and the Patent Rules 1972, which came into force on 20 April 1972. The Act defines an 'invention' as a process or product that is new, useful, and capable of industrial application. It grants exclusive rights to the creator of a product or process for a limited term of 20 years.
Computer-implemented inventions (CRIs) have been a contentious issue in India for many years. Section 3(k) of the Patents Act 1970 explicitly excludes the patentability of "computer programmes per se". However, the interpretation and application of this clause have been ambiguous, leading to confusion and debate. The Controller General of Patents, Designs, and Trade Marks (CGPDTM), the Indian body responsible for administering the Patents Act, has issued guidelines on examining computer-related inventions. These guidelines were met with civil society protests, as there were concerns that they covertly allowed for the patentability of computer programmes. As a result, the CGPDTM withdrew the original guidelines and published a new version that reaffirms the exclusion of software patents.
To address the complexities of CRIs, the CGPDTM introduced a three-step test to determine the applicability of Section 3(k) to computer-related inventions. This test aims to provide clarity and ensure that patent protection is granted only to eligible inventions. The three-step test considers:
- Whether the invention relates to a hardware implementation performing a novel function.
- Whether the novel features of the invention reside in a set of instructions designed to cause the hardware to perform specific operations without adapting the hardware.
- The legislative intent behind the inclusion of "per se" in the Act.
Case law has also played a significant role in shaping the patentability landscape for CRIs in India. Notable cases include Enercon India Ltd. v. Aloys Wobben (2010) and Accenture Global Service GMBH v. The Assistant Controller of Patents & Designs (2012). These cases have offered insights into separating patentable computer-related applications from the scope of "computer programme per se".
In conclusion, while India has made significant strides in clarifying the patentability of computer-implemented inventions, it continues to be a complex and evolving area of patent law. The rise of artificial intelligence (AI) and the buzz around tools like ChatGPT further emphasise the importance of establishing robust parameters for intellectual property protection in this domain.
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Frequently asked questions
Patent law in India refers to the set of laws that govern the granting of patents, which are exclusive rights granted by the government to the creator of a product or process. Patents in India are governed by the Patents Act, 1970, and its subsequent amendments.
The fundamental criteria for patent eligibility in India include novelty, inventive step, and industrial application. The invention must also not fall under the exclusions mentioned in Sections 3 and 4 of the Patents Act, such as abstract ideas, natural phenomena, or inventions that may harm public health or the environment.
In India, patents can be granted for products, processes, methods, computer-implemented inventions with technical improvements, and modifications to existing products or processes. Software code itself cannot be patented, but computer-implemented inventions solving technical problems may be eligible.
A patent in India typically lasts for 20 years from the date of filing the patent application. However, for applications filed under the Patent Cooperation Treaty (PCT), the 20-year term begins from the international filing date.
Yes, certain inventions are excluded from patent protection in India. These include mathematical or business methods, computer programs, algorithms, literary or artistic works, and inventions based on traditional knowledge, plants, and animals. Additionally, methods related to agriculture, horticulture, or medical diagnosis/treatment are also excluded.
