THE INDIAN PATENT ACT -

1970
Harnoor Singh(16)
Ashmeet Kaur (5)
What is a patent ?

A patent is a grant from the government which

confers on the guarantee for a limited period of
time the exclusive privilege of making, selling and
using the invention for which a patent has been
granted
THE INDIAN PATENT ACT
In India the grant of patents is governed by the
patent Act 1970 and Rules 1972.
The patents granted under the act are operative in
the whole of India.

HISTORY
The Patent Law of 1856

The Patent and Designs Act, 1911.

The Patents Act, 1970 and Rules 1972

The Patent amendment act 2005

Patents amendment 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.
The Patents amendment 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)
 Objective of Patent

To 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.
Purpose of getting a patent

To enjoy the exclusive rights over the invention.

The patent is to ensure commercial returns to the

inventor for the time and money spend in
generating a new product.
 INTELLECTUAL PROPERTY
Intellectual property is the product or creation of the mind. It is different
from other properties in term that it is intangible. Hence it needs some
different way for its protection.

INTELLECTUAL PROPERTY RIGHTS

IPR is the body of law developed to protect the creative people who have
disclosed their invention for the benefit of mankind. This protects their
invention from being copied or imitated without their consent.
What can be patented?
In order to be patentable , an invention must pass
four tests;

1. The invention must fall into one of the five statutory

classes: Processes, Machines , Manufactures
Compositions of matter, and New uses of any of the
above

2. The invention must be useful

3. The invention must be novel

4. The invention must be nonobvious

Patent Law - Salient Features
Both product and process patent provided
Term of patent 20 years
Examination on request
Both pre-grant and post-grant opposition
Fast track mechanism for disposal of appeals
Provision for protection of bio-diversity and
traditional knowledge
Publication of applications after 18 months with
facility for early publication
Substantially reduced time-lines
Safeguards in the Patent Law
Compulsory license to ensure availability of drugs
at reasonable prices
Provision to deal with public health emergency

Revocation of patent in public interest and also on

security considerations
Types Of Patents
Three types of patent are granted under the
provisions of the act, namely:

1. An Ordinary Patent

2. A Patent Of Addition

3. A Patent Of Convention
A second type of classification of patent is:

1. Product Patent

2. Process Patent
Patentable Inventions

Invention must

Relates to a process or product or both

Be new (novel)

Involves an inventive step

Be capable of industrial application

Not fall under section 3 and 4

NEW MEANS.

Invention must not be

Published in India or elsewhere
In prior public knowledge or prior public use
with in India
Claimed before in any specification in India
Inventive step means
A feature of an invention that

Involves technical advance as compared

to the existing knowledge..

Industrial application means

Invention is capable of being made or used
in any kind of industry.
Section 3 exclusions

Section 3(a)
Inventions contrary to well established
natural laws

Examples
Machine that gives more than 100%
performance
Perpetual machine
Section 3(b)
Commercial exploitation or primary use of
inventions, which is
Contrary to
public order or
Morality
Examples
Gambling machine,
Device for house-breaking ,
Section 3(b)
Commercial exploitation or primary use of
inventions , which
Causes serious Prejudice to
health or
human, animal, plant life or
to the environment
Examples
Biological warfare material or device,
weapons of mass destruction
Terminator gene technology,
Embryonic stem cell
Non Patentable Inventions
Inventions falling within Section 20(1) of the

Atomic Energy Act, 1962 are not patentable

Eg: Inventions relating to compounds of

Uranium, Beryllium, Thorium, Plutonium,

Radium, Graphite, Lithium and more as notified

by Central Govt. from time to time.

 The Term Of Patent :

In respect of a invention claming process of

manufacture of a substance intended to be used as
food or medicine ---- 5 yrs from the date of sealing
or 7 yrs from the date of patent whichever is shorter.

In case of any other invention ---- 14 yrs from the

date of patent.
Expiry Of A Patent
A patent can expire in the following ways:

1. The patent has lived its full term.

2. The patentee has failed to pay the renewal fee.

3. The validity of the patent has been successfully

challenged by an opponent by filing an opposition
either with the patent office or with the courts.

4. As soon as the patent expires, it pass to the general

public domain and now anybody can use it
without the permission of the original inventor
STAGES FROM FILING TO
GRANT OF A PATENT
Obtaining A Patent
File an application for patent

With one of the patent offices based on

territorial jurisdiction of the place of office or
residence of the applicant /agent
Pay the required fee

Information concerning application form and

details of fee available at www.ipindia.nic.in

Guidelines for applicants also available on this

website
Formality Check
An Examiner checks the formal requirements
before accepting the application and the fee this
is done immediately
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
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
Examination

Application is sent to an Examiner within 1 month

from the date of request for examination
Examiner undertakes examination w.r.t.

whether the claimed invention is not prohibited

for grant of patent
whether the invention meets the criteria of
patentability
Issue of FER

A period of 1 to 3 months is available to Examiner

to submit the report to the Controller
1 months time available to Controller to vet the
Examiners report
First Examination Report (FER) containing list of
the objections is issued within 6 months from the
date of filing of request
Documents to be submitted along with patent application

Application Form in duplicate (Form 1)

Provisional or Complete Specification (Form 2) In case of
provisional specification the complete specification must be
filed within 12 months.
Drawing in duplicate if necessary
Abstract of invention in duplicate
Information of Undertaking listing the no., filing date & current
status of each foreign patent application. (form 3) in duplicate
Priority Document
Declaration of Inventorship (form 5)
Power of Attorney if filed through patent agent (form 26)
Fees to be paid in Cash/ Cheque/ DD.
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
Grant of a Patent

A certificate of patent is issued within 7 days

Grant of patent is published in the official journal

 STAGES - FILING TO GRANT OF PATENT

FILING OF APPLICATION
PROVNL. / COMPLETE

PUBLICATION OF APPLICATION PROMPTLY AFTER 18 MONTHS FROM P.D.

REQUEST FOR EXAMINATION WITHIN 48 MONTHS FROM F.D.

EXAMINATION-ISSUE OF FER 3rd Party Representation

ALL OBJECTIONS TO BE COMPLIED WITHIN 12
MONTHS
GRANT OF PATENT

OPPOSITION
WITHIN 12 MONTHS

Decision of
Controller
Appeal

Appellate Board Revocation/Amendment

FEES

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.
Renewal Fee
To be paid within 3+6 months from date of
recording in the register [sec 142 (4) ]
No fee for 1st and 2nd year

Renewal fee, on yearly basis, is required to be paid

for 3rd to 20th for keeping the patent in force
Delay upto six months from due date permissible
on payment of fee for extension of time
Patent lapses if renewal fee is not paid within the
prescribed period
Rights of a patentee
1. Right to exploit the patent.
The patentee has a right to prevent 3rd parties, from
exploiting the patented invention.

2. Right to grant license.

The patentee has a power to assign rights or grant license.

3. Right to surrender.
The patentee is given the right to surrender the patent by
giving notice in prescribed manner to the controller.

4. Right to sue for infringement.

A patentee is given the right to institute proceeding for
infringement of the patent in a district court .
SURRENDER OF PATENT

In order to surrender his patent a

patentee has to give notice to the
Controller in the prescribed manner.
The registrar then informs all
concerned persons and on hearing
the patentee and any opposition, if he
feels he may allow the surrender of
the patent
REVOCATION OF A
PATENT

A patent may be revoked by the High Court or

an Appellate Board on any of the following
grounds:
The specifications claimed in the application
have already been given in a prior application.
The patent was granted to a person who is not
entitled to apply for it.
The patent was granted wrongfully.
The patent was obtained by false
representation.
OFFENCES PENALTIES
Contravention of secrecy provisions imprisonment upto 2 year, or fine, or both
relating to certain invention

Falsification of entries in register etc. imprisonment upto 2 year, or fine, or both

Unauthorized claim of patent rights fine upto 1 lakh rupees
Wrongful use of word patent office imprisonment upto 6 months, or fine or
both
Practice by non-registered patent agents first offence fine up to 1 lakh rupees

Second or subsequent offence

fine up to 5 lakh rupees

Refusal/failure to supply information imprisonment upto 6 months, or fine or

both
Offence by companies the company as well as every person in
charge of, and responsible to, the company
to conduct of its business at the time of
commission of offence shall be deemed to
be guilty and liable to be proceeded against
punished accordingly.