RESEARCH AND COMPARE THE PATENT LAWS OF INDIA TO UNITED STATES BY - GHANSHYAM

RESEARCH AND COMPARE THE PATENT LAWS OF INDIA TO UNITED STATES

AUTHORED BY - GHANSHYAM

Abstract

The security of the drug product and procedure that the patentee invented today depends greatly on the patent. A patent is a monopoly right given to an inventor, allowing them to stop others from producing, using, or selling their creation without their consent for a set amount of time.

The patent system is crucial for boosting the economy and improving quality of life. By granting innovators a temporary exclusive ownership interest in their ideas, it encourages creativity. By compelling inventors to publicly reveal their inventions, it also accelerates and expands the dissemination of beneficial knowledge. The pharmaceutical and biotechnology industries place a great deal of importance on patents because they offer a way to recover the astronomically high expenses associated with product development. There is discussion of the legal prerequisites for acquiring a patent. A brief explanation of the patent application examination procedure is also provided.

The objective of this work includes comparison of patents between India, US and Europe. As per the data received by an official site, the number of applications filled and granted in US is more, compared to India and European countries. Both these laws are very distinct. There are many similarities but differences also exist. In all significant patent systems, the steps for obtaining a patent are essentially the same; the distinction is in whether or not an invention is patentable. Anyone who develops a novel and useful process, machine, manufacture, or material composition—or any novel and beneficial improvement thereof—is eligible to receive a patent under US law. On the other hand, the Indian patent statute and the EU Patent statute go into great detail regarding which inventions are not protected by the Patent Act under various provisions.

Keywords: Patent, Utility, Description, Patent process, India, United State, European Countries.

Introduction- Intellectual property rights (IPR) are statutory rights once granted allows the creator(s) or owner(s) of the intellectual property to exclude others from exploiting the same commercially for a given period of time. It allows the creator(s)/owner(s) to have the benefits from their work when these are exploited commercially. IPR are granted to an inventor or creator, designer in lieu of the discloser of his/her knowledge.

Figure 1: Flow chart of different types of IPR

Patent is a monopoly right granted by the State to an inventor for a limited period, in respect of the invention, to the exclusion of all others. The objective of granting the patent is to ensure that it is worked (utilized) in the country; and it is not meant to block production or further research and development. A patent system encourages technological innovation and dissemination of technology. This in turn stimulates growth and helps the spread of prosperity and better utilization of resources. Patent cooperation treaty: This treaty offers a simplified patent application procedure for over 140 countries worldwide. It enables inventors to file a single international application designating many countries, instead of having to apply separately for national or regional patents. In this international phase, an international search and – on request – international preliminary examination is performed. In the national or regional phase, the patent granting procedure is then carried out by the relevant national or regional patent offices. India is a member country to PCT.[1]

Basic steps involved in patent process

1. Invention by inventor or applicant
2. Search for same patent
3. Apply for patent by applicant
4. Filing for patent by applicant along with all formalities
5. Examination of patents by patent office
6. Payment of schedule fees
7. Finally grant of patents.

The benefits derived from a patent include:

1. Higher profit margins
2. Reduce competition
3. Encourage settlement
4. Expand market share

Patent system in India

Patentable invention According to the Indian Patent Act, a patentable invention is defined as a new product or process involving an inventive step and capable of industrial application.

1. Invention must be ‗new ‘
2. Invention must involve an ‗inventive step ‘
3. Invention must be having ‗industrial application ‘

Invention not patentable[2]

The main categories, which do not qualify for patentability under the act, are:

• A creation whose application might be immoral or harmful to public order or which gravely harms the environment, the health of people, animals, or plants. Consider a novel kind of slot machine.
• Inventions relating to atomic energy. This is so because the central government has the sole responsibility for the development of atomic energy and for obvious reasons will not like its programmers to be hampered by patent claims.
• A frivolous innovation or one that makes claims that is blatantly at odds with well-known natural rules. A perpetual motion machine claim, for instance, won't be eligible for patent protection because it would go against accepted natural laws.
• The mere discovery of a scientific principle or the formulation of an abstract theory. For example, a discovery merely unveils a hidden thing; it does not involve an act that makes it useful; it is therefore not an invention and hence not patentable. Similar reasoning applies to the formulation of an abstract theory.
• Discovery of any living thing or non-living substances or objects occurring in nature.

United States (US)

An Act to encourage the Advancement of Useful Arts was the main goal of the United States' first patent statute. The US Patent statute, which had seven sections, was a fairly condensed Act. The Act also stated that "any useful or valuable art, engine, production, machine or device, or any development therein not known or utilised previously," satisfied the criterion.

The power for granting of patents is vested with the Patent Office. A Patent is granted for a term of up to 14 years for inventions that are ―sufficiently useful and important‖ for the country and its people. The Patent Office will grant the application for Registration of Patent only when the grantee has submitted a complete specification describing the invention or creation to the Secretary of the State at the time of grant of Patent.[3]

There were essentially two developments in the US that influenced the growth of Patent Law in the nation after the US joined the Paris Agreement. The Sherman Act of 1890 and the Evarts Act of 1891 were the two main advancements[4]. The US established the structure of contemporary patent law in 1952, which prompted significant changes to the nation's patent law framework. Title 35 of the United States Code, which also controls all proceedings at the United States Patent and Trademark Office, is the current patent legislation of the United States (USPTO).

In India

The Patent Law of India dates back to nearly 150 years. The Act of 1856 was recognized as the Act VI of 1856. The 1856 Act was on the protection of inventions of the inventor and was based on the British Patent Law of 1852.[5] The 1856 Act granted certain exclusive privileges to the inventors or creators of new inventions or creations for a time period of 14 years.

Later, the 1856 Act was revoked, and the Patents and Designs Protection Act was legally published in 1872. The 1872 Act was also periodically modified in accordance with the demands. Later, the 1872 Act was renamed "The Protection of Inventions Act" in 1883. The 1872 Act was renamed "The Inventions and Designs Act" in 1888. The "Indian Patents and Designs Act" was finally passed in 1911.

Although India gained its independence in 1947, it continued to adhere to the previous British Patent Law. The Indian Parliament first heard a patent bill in 1965, when the British Law was still in effect. The bill was later passed as the Indian Patent Act of 1970. On April 20, 1972, the Indian Patent Act, 1970, went into effect. The Patents (Amendment) Act, 1999, which further altered the 1970 Act, was signed into law on March 26 by the President.[6]

In the year 1995, India joined the World Trade Organization (WTO) and hence, automatically became a signatory member of the Agreement on TRIPS (Trade-Related Aspects of International Property Rights). To meet the requirements of TRIPS, India needed to amend its current Patent law subject to certain transitional allowances under Article 65 of TRIPS provided for developing countries.[7]

The Patents (Amendment) Act, 2002, which further revised the 1999 Act, went into effect in 2003. In order to fix the gaps in the 2002 Act, the Patents (Amendment) Act, 2005 was later put into effect on January 1, 2005. The Patents (Amendment) Act, passed in 2005, handles India's TRIPS agreement compliance requirements. The most recent revision to India's patent legislation, made in 2005, complies with the TRIPS agreement's requirements and offers protection for goods used in the production of medications, chemicals, and pharmaceuticals.[8]

• The different basis of comparison between US and Indian Patent Laws System are as follows[9]:

• First To Invention or First to File

In India, when two or more persons apply for a patent on a similar invention, the person who files the application of Patent at first is considered by the Office of Patent. Assuming that the invention is patentable, the Patent will be granted to the person who first files the application. The date of filing of application of Patent is considered, and the priority is given to the person who filed the application first. Even in such a case where the second person came up with the invention earlier still if the first person filed the application of Patent, priority will be given to the first person.

However, in the US, if two or more applications are submitted for the same invention, it will be decided who came up with the idea first. In the US, interference actions are conducted to ascertain the original inventor of an invention. As a result, in the US, the person who invented the invention first receives the grant of a patent rather than the person who submitted a patent application first. Although every Office of Patents in the world is based on the "first to file" method, a bill was recently proposed in the US to revise the provision of first to invent and shift the system to first to file.[10]

• Grace Period

There is a difference in the grace period provided to the inventor under the US and Indian Patent Laws. In India, the application of Patent will be rejected, if the invention of a person had become available publicly in any way before the application of Patent was filed in the Patent Office. The term "publicly available" refers to any act that makes a patent available to the general public, including a public sale, public use, publication, lecture about the invention, presentation of the invention to an investor without a nondisclosure agreement, publication of an invention in a magazine, or any combination of these actions. It won't matter if the person committing these acts is the inventor themselves, another inventor, or a completely unrelated third party. On the other hand, there is a one-year grace period in the US. A one-year grace period means that the creator of the invention has the right to publish it before submitting the patent application for a period of one year. Such a publication for a period of one year will not affect the patent rights of the inventor of the invention. However, in the case where the inventor himself/herself discloses his/her own work more than one year before the filing of application of Patent, then the inventor will be barred from obtaining a Patent.[11]

• Requirement Of Novelty, Utility and Non-Obviousness/ Inventive Step

In order for a person's ideas to be patentable in each country, the US and Indian legal systems have a few characteristics. The novelty, non-obviousness, or innovative step, and utility of the invention invented by a person are the features that the US and Indian Patent Laws have in common. Utility patents are the only ones in the US where the condition of utility is binding; other design and plant patents are not.

The two most crucial prerequisites for getting an invention patented in India are that it be original and also entail an inventive step, in addition to being industrially relevant. The crucial prerequisite for an invention in comparison to the US is that the invention should be Novel, industrially applicable, and should not be Obvious.

• Best Mode Requirement

The best mode of requirements for US and Indian Patent Laws are different and hence, becomes a primary basis of the difference between the US and Indian Patent Laws. The Patent Law of the US requires the inventor of the invention to include the best way to practice the invention in the application of Patent application.

According to the US patent system, a complete specification of a patent should include a written description of the invention, the manner and process of using and making the invention, in such clear, concise, full, and exact terms as to enable any person skilled in the related art to which the invention of the inventor pertains, or with which the invention is most likely to be used. Connected, to use and make the invention, and should set out the best method anticipated by the inventor of the invention of carrying out his/her invention.[12]

In India, in order for the inventor to be granted protection, the applicant of a patent application must disclose the best method of putting the invention into practice that the applicant is aware of. If there is more than one best way to implement the invention, the inventor should specify each one in the specification of the patent. The whole specification of the patent should disclose the best way to implement the invention.

• Publication Of Patent Applications

The US and Indian Patent Laws have different requirements for the publication of patent applications. Except in situations where the application is withdrawn or is filed with a request for non-publication, US patent applications are published 18 months following the date of filing with the Office of Patents.[13]

The above mentioned is a situation similar to India, where all applications of Patent are published after 18 months from the date of filing, unless an application of Patent is withdrawn by the applicant. The primary difference is that a request for non-publication cannot be made in India.

• Rights Conferred by A Granted Patent

A Patent of India or US is a property right that is enforceable in the whole territory of both countries. The property right related to a Patent allows the holder of Patent to prevent any person from making, selling or using the invention of the holder of Patent in the country.

In this situation, the EU Patent has a distinctive feature. Only members of the European Patent Convention are eligible to receive European Patents from the European Patent Office, or EPO. A patent applicant submits a single European Patent application while designating the several nations in Europe where they wish to receive patent protection.

In accordance with what the Patent Office would have done in the case of a national application, the European Patent Office awards the applicant of the patent application the same patent rights in the nations they have chosen. Hence, a European Patent is occasionally referred to as a "bundle of rights." It is therefore evident that the rights granted under US, EU, and Indian Patent Laws are different.[14]

• Opposition After Grant of Patent

Once an application of Patent is granted any person has the right to oppose the grant of Patent within 9 months from the date of granting of the Patent. If the granted Patent is found to be invalid by the Patent Office, such Patent will be revoked in all other countries simultaneously.

The objection must be filed prior to the award of a patent under Indian Patent Law, which only covers situations when the patent application has been published.

Although the US has a re-examination process, it is not the same as the opposition. Any person may ask the United States Patent and Trademark Office (USPTO) to re-examine a granted patent by providing sufficient justification and reliable proof.

• Language Of Patent Application

The filing of a patent application differs slightly between Indian and US patent laws. The US and Indian Patent Offices only conduct business in English. English, French, and  German are the official languages of the EU Patent Offices. Any language may be used to submit a patent application as long as a translation into one of the official languages is done so within two months of the date the application was filed in the other language.

Conclusion

The process of issuing a patent in India is relatively comparable to that of the EU and quite different from that of the US, according to a thorough analysis of the US, EU, and Indian Patent Laws. Nearly every nation has its own patent laws, and when someone wants a patent in a certain nation, they must submit an application in line with the rules of that nation. There are several standards for patentability around the world. A concerted effort should be undertaken to harmonise all of the various countries' patent laws. The person requiring a grant of Patent under US, EU and Indian Patent Laws is required to go through a long-lasting and time-taking process.

[1] JUSTIFYING INDIA’S PATENT POSITION TO THE UNITED STATES INTERNATIONAL TRADE COMMISSION AND OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE by Srividhya Ragavan, Sean Flynn and Brook Baker

[2] Section 3&4 of Indian Patent Act,1970

[3] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[4] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[5] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[6] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[7] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[8] Indian Patent Act, 1970

[9] https://corpbiz.io/learning/us-eu-and-indian-patent-laws-a-comparative-study/

[10] Comparision of Patenting System in India, Us and European Countries by Nikitha K. Heble, N. Vishal Gupta

[11] Comparision of Patenting System in India, Us and European Countries by Nikitha K. Heble, N. Vishal Gupta

[12] Comparision of Patenting System in India, Us and European Countries by Nikitha K. Heble, N. Vishal Gupta

[13] STATES INTERNATIONAL TRADE COMMISSION AND OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE By Srividhya Ragavan, Sean Flynn and Brook Baker

[14] JUSTIFYING INDIA’S PATENT POSITION TO THE UNITED STATES INTERNATIONAL TRADE COMMISSION AND OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE by Srividhya Ragavan, Sean Flynn and Brook Baker