The Indian Patents Act 1970

The Indian Patents Act 1970

The philosophical basis behind intellectual property laws lies in a distinction made between the physical input in a product or work, and the mental input. Intellectual property recognises or places material value upon the underlying ideas or mental labour of a person.

A patent can de defined as a monopoly right granted to a person who had invented a new and useful product, or a new process for making a product. The right granted is generally an exclusive right to manufacture a particular item, or the right to manufacture an item
through a particular process for a period of time.

Process patents in India
The Patents Act makes a distinction between patentable and non-patentable inventions. Under Indian law, a distinction is made between patents which may be granted to the goods and the patents which may be granted to the process through which the goods are  produced, and in India a patent is granted only to the process and not to the product itself.

However after India signed GATT, it will have to confirm to international standards, whereby even products can be patented. To be eligible for a patent under Indian law a person should have been the first and true inventor. Patent is granted normally for 14 years except for inventions relating to manufacture of food or drugs or medicine in which case it is seven years from the date of the patent.

Black box method
Additionally, in India there is another means of determining the length of the patent granted. This is the black box method, which broadly refers to the time at which the patent application was made or `sealed’.

More often than not a patent is granted right from the time of the sealing of the patent, in which case the length of the patent is calculated from the time that it was sealed.

An application for patent has to be made with complete details about the process that is sought to be patented. This is one area which becomes legally tricky as more often than not the lawyers drafting the patent application do not have an adequate scientific background to understand the process entirely thereby drafting patent applications which are either ambiguous or do not adequately protect the rights of the patentee.

Rights of a patentee
Once a patent is granted to a person or inventor then there are several rights which are granted. These include the exclusive right of commercial exploitation, the right to assign or give the patent to some other person and the right to surrender the patent. It is also a duty of the patentee to ensure that s/he makes full use of the patent without any delay (since the presumption is that the invention is useful). In case there is a misuse of such monopoly granted then the controller of patents may revoke the patent.

Violation attracts injunction
An infringement or violation of the patentee’s right takes place either through the use of the process by any party. This may either be through the use of the process or the use of the marketing right that has been granted to the patentee. In case there is an infringement of the patentee’s right then a suit may be filed for infringement. The normal reliefs that may be available to a person whose rights have been violated include an injunction or an order stopping the other person from using the process or manufacturing the product, and damages for such misuse.

Is cloning patentable?
In recent years, patent law has thrown open a number of issues which have great moral and ethical significance. For instance, the entire issue of whether cloning of animal or human life is a patentable process. Be that as it may the fact remains that the grant of patents is still merely a legal issue whereas the effect of such grant will have significant consequences in the era of globalisation where the play of power between the north and the south will also find itself reflected in the competition for a monopoly of exclusive production.