PATENTS AND EXPOSURE TO KNOWLEDGE: A CRITICAL ANALYSIS

This article is written byP. Rajnandini of Capital Law College, Bhubaneswar, an intern under Legal Vidhiya

Abstract

Patents serve as a solution to the challenges posed by the non-excludability and non-rivalry aspects of knowledge. They provide direct incentives for investment, but at the same time, they can unintentionally restrict the natural spread of knowledge. The key to achieving the optimal balance lies in designing public innovation policies that encourage investment in inventive activities while ensuring the unrestricted dissemination of knowledge. Additionally, patents play a crucial role in facilitating the transfer of technology from universities to the private sector, allowing firms to rightfully claim the returns generated from their investments in commercializing inventions.

Patents are an invaluable resource, offering comprehensive design information across various fields. By establishing connections between design issues and patent knowledge, designers can effectively tackle challenges in diverse areas. This mapping relationship serves as a crucial pathway for sharing and integrating multidisciplinary patent knowledge. Through strategic representation of patent knowledge based on design problems, innovative solutions can be achieved.

Keywords

Patents, Traditional knowledge, India, Invention, Licensing, Intellectual Property.

Introduction

A patent is a valuable form of intellectual property, just like trademarks and copyrights. The term “patent” originates from the Latin word “pater,” meaning “to lay open.” This signifies the act of making an invention available to the public.

When someone obtains a patent, they are granted a special license that gives them exclusive rights and ownership over their invention for a specific period. This means that others are prohibited from making, using, or selling the patented invention without the owner’s permission. If someone violates these exclusive rights, it is referred to as patent infringement.

In India, the governing law for patents is the Patents Act of 1970. The primary purpose of this act is to encourage individuals to come up with innovative ideas in their respective fields by granting them exclusive rights over their inventions. This serves as an incentive for people to contribute to the advancement of knowledge and technology.

What does the term “Patent” signify?

A patent is a special right granted by the Government to the inventor, allowing them to prevent others from using, making, and selling their invention for a specific period. It can also be obtained for improvements made to a previous invention. The primary objective of patent laws is to motivate inventors to make more contributions in their respective fields by providing them with exclusive rights to their inventions. In contemporary language, a patent is commonly known as the privilege given to an inventor for creating any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter. The term “patent” originates from the Latin word “pater,” which means “to lay open,” signifying making the invention available for public scrutiny. There are three fundamental criteria for an invention to be eligible for a patent: firstly, it must be novel, meaning it must not already exist; secondly, it must be non-obvious, indicating a significant improvement. over previous inventions, as mere technological advancements do not qualify for patent rights; and thirdly, it must be useful in a legitimate manner, ensuring that the invention serves a genuine purpose and is not intended for unlawful activities.

An invention is considered new if, at the time of applying, it is not known to the public in any form, whether oral, written, or otherwise. Anything that is already known to the public cannot be deemed inventive. A patent has a duration of 20 years starting from the date of filing the application. It is a territorial right, meaning it is only valid in the country where it is granted. Legal action for patent infringement can only be pursued in that specific country. To secure patent protection in multiple countries, separate patent applications must be submitted to each country. The Patent Cooperation Treaty (PCT) allows for the filing of an international patent application, enabling a single application to cover numerous countries. However, the decision to grant a patent under the PCT remains at the discretion of each patent office after the application is submitted.

By Indian patent law, a patent can only be obtained for a new and useful invention. This invention must pertain to a machine, article, or substance produced by a manufacturer, or the process of manufacturing an article. Additionally, a patent can also be obtained for an innovative article or process of manufacture. However, when it comes to medicine, drugs, and certain classes of chemicals, a patent is not granted for the substance itself, even if it is new. Instead, the process of manufacturing the substance is considered patentable. It is important that the application for a patent is accurate and submitted by the first inventor or someone who has obtained the right to apply for a patent from the original inventor.

Certain inventions cannot be patented, Under the European Patent Convention (EPC) law, there is a list of non-patentable subject matter, which includes methods of medical treatment or diagnosis, as well as new plant or animal varieties. For more detailed information regarding these fields, it is advisable to consult a patent attorney. Furthermore, patents cannot be granted for inventions that would go against public order or morality, such as land mines or letter bombs.

The following are also not considered inventions:

• Discoveries, innovations, scientific theories, mathematical methods, aesthetic creations (such as art or literature works), schemes, rules, and methods for performing mental acts, playing games, or conducting business, as well as presentations of information and computer software.[1]

The Historical Account of Patents:

The first legislation in India regarding patents was the Act VI of 1856. still, this act was later repealed by Act IX of 1857 because it was legislated without the blessing of the British Crown. In 1859, a new legislation called Act XV of 1859 was introduced to grant exclusive boons.   Act XV of 1859 made some changes to the former legislation. It only granted exclusive boons to useful inventions, extended the precedence period from 6 months to 12 months, and barred importers from the description of investors.

 In 1872, the Act of 1859 was combined with another act to give protection for designs. The joint effort was rebranded as “The Act for the Protection of Patterns and Designs” by Act XIII of 1872, with subsequent modifications made in 1883. This law remained in force for 30 times and was amended again in 1888.[2]  

The Indian Patent and Design Act of 1911 repealed all the former acts that had been legislated. The current Patent Act of 1970 came into effect in 1972, amending and consolidating the laws relating to patents in India. This act was further amended by the Patents ( Correction) Act of 2005, which extended product patents to all fields of technology, including food, medicines, chemicals, and micro-organisms. This correction repealed vittles relating to Exclusive Marketing Rights ( EMRs) and introduced vittles for granting mandatory licenses and pre-grant and post-grant opposition.

Intellectual Property Rights and Indigenous Knowledge

Traditional knowledge is not defended under Section 3(P) of the Indian Patent Act, 1970. This means that inventions that are predicated on traditional knowledge or are simply a combination or duplication of known parcels of traditional factors can’t be patented. For this case, the patent operation for a process to meliorate Chyawanprash, which involves slicing, riding, and mixing dry fruits before adding them to the Chyawanprash, does not qualify as an invention under Section 3(P) of the Patents Act 1970. This is because it’s predicated on traditional knowledge, which is not eligible for patent protection. still, if there are significant changes to the traditional knowledge that meet the conditions of Indian intellectual property law, also it’s possible to seek intellectual property protection. Indian law does give vittles to cover traditional knowledge. Traditional knowledge is considered to be in the public sphere, and therefore, any patent operation related to traditional knowledge does not meet the description of an invention as stated in the Patents Act of 1970, Section 2(1)(j) states that’’ The section defines an invention as a new product or system that requires an innovative step and is suitable for artificial use. also, Section 3(E) of the Patents Act states that a substance attained through a bare admixture, which only results in the aggregation of the parcels of its factors, or a process for producing analogous substances, “It does not qualify as an invention and therefore cannot be protected by a patent.” Patent operations predicated on traditional knowledge that violates the vittles of the law may be rejected under Section 15 or face opposition during the pre-grant stage under clauses ( d),( f), and( k) of Section 25( 1). Patents that have formerly been granted may also be abandoned through opposition under clauses ( d),( f), and( k) of section 25( 2) of the Patents Act, 1970. The Patent Act of 1970 mandates the disclosure of traditional knowledge (TK) and the origin of the invention. According to Section 10(4)(ii)(D) of the Act[3], the specification must include the source and geographical origin of all biological material utilized in the invention.

Patents can safeguard various aspects of TK. Novel and inventive technical solutions from around the world can be protected through patent applications. For example, trademarks featuring modern subject matter may also be eligible for patent protection. Processes for extracting products from biological sources like microorganisms, plants, and animals can be patented. However, codified traditional knowledge cannot be patented due to a lack of novelty. Nevertheless, utilizing codified TK as prior art can prevent others from obtaining patents.[4]

Case Law

• Aranmula, a rural area located in the Pathanamthitta District of the State of Kerala in India, is renowned for its unique metal mirror known as the ‘[5]Aranmula Kannadi’. What sets this mirror apart from the ordinary ones is its exceptional quality, crafted from a combination of tin and copper. The production of this metal mirror is a closely guarded secret, known only to a select few traditional families. The specific combination of tin and copper used in its creation is kept confidential by these families, contributing to the exclusivity and longevity of their business. Recognizing its cultural significance, ‘Aranmula Kannadi’ has been listed as a Geographical Indication (GI) under the Parthasarathy Handicraft Centre Act. The efforts made by the artisans to protect the traditional manufacturing process and secure the GI status provide ample protection to their traditional knowledge.

Amendment made in 2005

It requires patent aspirants to expose the source of the natural coffers used in their inventions. Failure to give this information, especially if it relates to traditional knowledge ( TK), may affect the rejection of the patent operation. also, the 2005 Correction outlines other reasons for refusing a patent operation or repealing a patent [6]– 

• If it’s discovered that the patent was attained by furnishing false or deceiving information about the geographical origin of the natural coffers involved.
• Still, it would not be eligible for patent protection, If the patent is simply a combination of colorful parcels that are formerly part of traditional knowledge  ( TK).  
• Still, the patent may also be refused, If the indigenous communities retain knowledge that makes the invention egregious or anticipated.

Steps for Obtaining a Patent in India

After submitting the patent application, an examination request must be made within 48 months from the priority date or filing date. Once the first examination report is issued, the applicant has 6 months to address any objections raised, with a possible 3-month extension upon request. If the requirements are not met within 9 months, the application is considered abandoned. Once objections are resolved and requirements are met, the patent is granted and announced in the Patent Office Journal.

Applying for a Patent entitlement in India by Foreign Citizens

India, as a signatory to the Paris Convention for the Protection of Industrial Property in 1883 and the Patent Cooperation Treaty ( PCT) in 1970, allows foreign realities to choose either of these covenants to file a patent operation in India.   still, the aspirant, their legal representative, If an operation for a patent has been filed in a Convention Country for an invention. In this case, the precedence date is considered as the date when the introductory operation was made.

Pre-grant Opposition

Any person can file a pre-grant opposition under section 11A of the Patents Act, 1970 within six months from the application’s publication date or before the patent is granted. The grounds for filing the opposition are specified in section 25(1) of the Patents Act. There is no fee for filing a pre-grant opposition, and it can be done even if no request for examination has been made. However, the opposition will only be considered if a request for examination is received within the specified period.

Post-grant Opposition

Within twelve months from the publication of the granted patent in the official journal of the patent office, any interested person can file a post-grant opposition.[7]

Grounds for Challenging a Patent

There are various reasons for opposing a patent before or after it is granted:[8]

1. Patent obtained through deception;
2. Information about the invention was already made public;
3. The invention was known or used in India before the priority date;
4. The invention is obvious and lacks creativity;
5. The subject of the claim is not considered an invention under the law;
6. Inadequate information about the invention or how it works;
7. For patents based on international applications, the application was not filed within twelve months of the first application in a convention country or India;
8. Incorrect information about the source of biological material used in the invention;
9. The invention was already known within a local community.

Patent Duration

Every patent in India lasts for 20 years from the date of filing, regardless of whether it was filed with provisional or complete specifications. For patents filed under the Patent Cooperative Treaty (PCT), the 20-year term starts from the international filing date.[9]

Renewal Fees

Patent holders must renew their patents annually by paying a fee, which can be paid yearly or in a lump sum.[10]

Restoring a Patent

A request to restore a patent can be submitted within eighteen months of its expiration, along with the required fee. The request is then published in the official journal for further processing.

Patenting Biological Accouterments

When a new invention involves natural material, it’s pivotal to deposit it with the International Depository Authority ( IDA) before filing the operation in India to enhance the description. still, if the natural accouterments are formerly known, there’s no need for such a deposit. The IDA in India, located in Chandigarh, is known as the Institute of Microbial Technology ( IMTECH).  

Rights under a Patent

The patentee has the right to help others by making, and using, If a patent is granted for a product. In the case of a process patent, the patentee can help others by using the process, using the product directly attained from the process, offering for trade, selling, or importing the product in India directly attained from the process.   previous to filing a patent  operation in India, it’s  pivotal to understand”

What isn’t Patentable in India?

 Inventions that are frivolous,  egregious, contrary to established natural laws, contrary to law, morality,  pernicious to public health, bare discoveries of scientific principles,  phrasings of abstract propositions, bare discoveries of new parcels or uses for given substances or processes, substances attained by bare amalgamation performing in the aggregation of element parcels, bare arrangements or duplications of known bias,  styles of husbandry or horticulture, and inventions related to infinitesimal energy aren’t patentable in India.

The Indian Patent Office (IPO) ensures the maintainability of secrecy by

keeping all patent applications confidential for a period of up to eighteen months from the filing date or priority date, whichever comes first. Subsequently, these applications are published in the Official Journal of the Patent Office every week. Following publication, the public is granted access to inspect the documents and obtain photocopies upon payment of the prescribed fee.[11]

Compulsory licensing

It is a significant provision under the Indian Patents Act, of 1970. After three years after the patent’s sealing date, any interested party can apply to the Controller of Patents for a compulsory license, provided certain conditions are met. These conditions include the failure to meet the public’s reasonable requirements for the patented invention, unavailability of the patented invention at a reasonable price, or non-working of the patented invention within the territory of India. Notably, an individual can apply for compulsory licensing even if they already hold a license for the patent.[12]

In the context of compulsory licensing, no individual can be prevented from asserting that the public’s reasonable requirements for the patented invention are unsatisfactory or that the invention is not reasonably priced, based on any prior admissions made by them, whether through a license or acceptance of such a license.

The Controller has the authority to order the patentee to grant a license if the public’s reasonable requirements for the patented invention are not met or if the invention is not available at a reasonable price. Before granting a compulsory license, the Controller considers factors such as the nature of the invention, the time since the patent was sealed, the efforts made by the patentee or licensee to utilize the invention, the applicant’s ability to benefit the public by working the invention, the applicant’s capacity to take on the financial risk, whether the applicant has tried to obtain a license on reasonable terms, national emergency or extreme urgency, public non-commercial use, and anti-competitive practices by the patentee. The grant of a compulsory license is not automatic and depends on meeting these conditions and the discretion of the Controller. If the Controller’s order is arbitrary or illegal, there is recourse through the judicial system.

Infringement of Patents

Once a patent is granted in India, it is possible to include a claim retrospectively from the date of publication of the application for the patent. Patent infringement in India involves unauthorized activities such as making, importing, using, offering for sale, or selling any patented invention. According to the Indian Patents Act, of 1970, only civil action can be taken in a Court of Law. Defending a suit for infringement can involve various grounds, including those on which a patent cannot be granted in India, leading to the possibility of revocation of the patent.[13]

Licensing and Assignment of Patents

Assigning a patent, sharing a patent, mortgaging a patent, licensing a patent, or creating any other interest in a patent is allowed. For patents, assignment is legally binding only when done in writing, with the agreement documented to include all terms and conditions governing the rights and obligations of the parties involved.[14] The transferee must apply for registration in the prescribed form.

Conclusion

The implementation of the Patents Act has played a crucial role in safeguarding novel innovations, thereby fostering the advancement of trade and technology in India. This legislation, enacted in 1970, not only grants patent holders numerous rights to safeguard and promote their inventions but also catalyzes inspiring individuals to cultivate fresh ideas in their respective fields. By bestowing exclusive rights to inventors, this law encourages the development of groundbreaking concepts. However, it is important to note that obtaining a patent necessitates adhering to a meticulous procedure outlined by the law.

Patents have the potential to yield immense advantages for both individuals and businesses, amplifying the returns on investments made in the pursuit of pioneering technologies. However, it is crucial to approach the patenting process with a well-thought-out strategy that strikes a balance between business interests and the various avenues available for implementing the technology. For instance, companies that prioritize international considerations and regulations can achieve substantial cost savings in specific countries while enhancing the rights conferred by patents.

References

1. Subhangi Sharma, Patent Law in India: Basics you Must Know,  I Pleaders, (2019) https://blog.ipleaders.in/what-is-a-patent-law-in-india/
2. Pulokrai, Law of Patent: Securing Intellectual Property In India, Legal Service India E-journal, https://www.legalserviceindia.com/legal/article-10384-law-of-patent-securing-intellectual-property-in-india.html
3. Gautam Badlani, Traditional Knowledge In IPR, I Pleaders, (2024)https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/#Patents_and_traditional_knowledge
4. Case law – https://lawbhoomi.com/traditional-knowledge-and-intellectual-property-right/
5. Vijay Dalmia, Patents Laws In India Everything You Must Know, mondaq, (2017) https://www.mondaq.com/india/patent/656402/patents-law-in-india—everything-you-must-know
6. Sutapa Jana, Challenging a Patent Application or a Patent In India, Acura IP, (2022) https://acuraip.com/challenging-a-patent-application-or-a-patent-in-india/
7. Epo.org, https://www.epo.org/en/service-support/faq/searching-patents/asian-patent-information/india/general-information-about-2
8. Dezan Shira and Associates, Patent Renewal in India- Fee and Procedure, India Briefing,(2018) https://www.india-briefing.com/news/patent-renewal-india-fee-procedure-17752.html/
9. Jain and Partners, https://www.jainandpartners.com/blog/details/compulsory-licensing-of-patents-in-india/37
10. Wikipedia,https://en.wikipedia.org/wiki/Patent_infringement#:~:text=Patent%20infringement%20is%20the%20commission,the%20form%20of%20a%20license
11. Indian Law Offices,(2023)                                                  https://www.indialawoffices.com/legal-articles/patent-assignment-in-india

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[1] Subhangi Sharma, Patent Law in India: Basics you Must Know,  I Pleaders, https://blog.ipleaders.in/what-is-a-patent-law-in-india/ ( Last visited, March 11, 2024, 3:50 PM )

[2] Pulokrai, Law of Patent: Securing Intellectual Property In India, Legal Service India E-journal, https://www.legalserviceindia.com/legal/article-10384-law-of-patent-securing-intellectual-property-in-india.html (Last visited, 11 March, 2024, 4:10 PM)

[3] Patent Act, 1970, 2(1)(j), 3(P)3(E), 10(4)(ii)(D),15(D)(F)(K), 25(1)(D)(F)(K), 25(2), No.39, Acts of Parliament, 1970 (India)

[4] Gautam Badlani, Traditional Knowledge In IPR, I Pleaders, https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/#Patents_and_traditional_knowledge (Last visited, 11 March 2024, 4:27 PM)

[5] Aranmula Kannadi’ AIR, 1980, Del, 125, India.

[6] Gautam Badlani, Traditional Knowledge In IPR, I Pleaders, https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/#Patents_and_traditional_knowledge (Last visited, 11 March 2024, 4:51 PM)

[7] Vijay Dalmia, Patents Laws In India Everything You Must Know, mondaq, https://www.mondaq.com/india/patent/656402/patents-law-in-india—everything-you-must-know (Last visited, 11 March 2024, 5 PM)

[8] Sutapa Jana, Challenging a Patent Application or a Patent In India, Acura IP, https://acuraip.com/challenging-a-patent-application-or-a-patent-in-india/ (Last visited, 11 March 2024, 5:10 PM)

[9] Epo.org, https://www.epo.org/en/service-support/faq/searching-patents/asian-patent-information/india/general-information-about-2 (Last visited, 11 March 2024)

[10] Dezan Shira and Associates, Patent Renewal in India- Fee and Procedure, India Briefing, https://www.india-briefing.com/news/patent-renewal-india-fee-procedure-17752.html/ (Last visited, 11 March 2024, 5:27 PM)

[11] Vijay Dalmia, Patents Laws In India Everything You Must Know, mondaq, https://www.mondaq.com/india/patent/656402/patents-law-in-india—everything-you-must-know (Last visited, 11 March 2024, 6 PM)

[12] Jain and Partners, https://www.jainandpartners.com/blog/details/compulsory-licensing-of-patents-in-india/37 (Last visited, 11 March 2024)

[13] Wikipedia, https://en.wikipedia.org/wiki/Patent_infringement#:~:text=Patent%20infringement%20is%20the%20commission,the%20form%20of%20a%20license (Last visited, 11 March 2024)

[14] Indian Law Offices, https://www.indialawoffices.com/legal-articles/patent-assignment-in-india (Last visited, 11 March 2024)

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