Evolution of Patent Law in India
Gurleen Kaur
St. Soldier Law College
1. INTRODUCTION
Patents are generally the exclusive rights given to the inventor who has invented the novel and non-obvious invention, which is oral, written, or in any other form that proved beneficial for the public.
So basically, the main motto of the patent law is to protect the patentee's rights (inventor). The patent laws in India are governed by The Patent Act, of 1970 (amended by subsequent amendments, most notably in 2002 and 2005). Under this act, the patentee enjoys exclusive rights and has control over its invention and how to use it for a specific period. The patentee has the right to license the invention to others and can earn royalties. The patentee needs to go through the whole application procedure to get their inventions patented. The patent in India is granted for 20 years from the filing date, and the patentee can renew it by paying annual renewal fees.
In India, patent law is very crucial as it protects intellectual property and promotes innovation. To get established in India, patent law has to go through so many amendments, and in this article further we will discuss the evolution of patent law in India.
2. HISTORICAL BACKGROUND
2.1. Pre-independence era (before 1947): In India, the patent law started taking shape primarily before independence and was specially formed by the Britishers, and it had a very crucial impact on its establishment and development in India. Before the British rule, India did not have any law for the protection of innovations, and it was shared and transmitted to the public through traditional and unprotected ways by this need for patent laws that had arisen. In the year 1856, the Britishers introduced the Indian Patents and Designs Act, of 1856. It was the first act made in India for the protection of innovations made by foreign inventors. In this act, the definition of patents is very narrow and covers inventions related to machinery, mechanical devices, and industrial processes; also, this act was foreign-centric and benefits British and other foreign inventors and is partial towards Indian inventors. It also had limited scope in terms of geographical protection, and it did not extensively deal with legal aspects of patent ownership and patent infringement, which makes its scope limited.
The Indian Patents and Designs Act, of 1911, was also made and this act was way more comprehensive and structured, which replaced the 1856. This act expands the definition of patentable inventions and includes inventions related to chemicals, textiles, and metallurgy. Under this act, the period of a patent grant is 14 years, extendable by another 7 years. Its unique feature is that under this act, foreign inventors can seek patents in India. However, the exclusion in this act is that it still does not have any legal protection for pharmaceutical inventions and medical products. In this act, we also have provisions for the registration of patents for industrial designs particularly relevant to sectors such as textiles.
2.2.Impact on Indian Industries: These acts had a very negative impact on Indian industries and were intentionally made to protect the rights of foreign inventors and bias towards Indian inventors and ensure that Indian inventors and industries did not develop independently. These patent laws have negatively impacted India's largest sectors, such as textiles and pharmaceuticals.
Due to the partial behavior of the patent laws in India, which primarily benefitted only British and foreign inventors, the Indian inventors got frustrated because it was very difficult for them to get their inventions patented and protected. Seeing this matter getting intense, nationalists and leaders like Jawaharlal Nehru and Mahatma Gandhi took action against it and advocated for more control over India's industries relevant to patent laws. When the independence movement started in India in the early 20s, the demand for economic self-sufficiency and control over its resources also increased. These colonial patent laws were openly criticized by Indian leaders and industrialists, and they called for reforms to make patent laws more suitable for India's needs.
As the Indian independence movement took further steps, the Indian patent reformers started arguing and demanding that the patent system should prioritize the Indian local industries and protect the Indian inventor's interests.
2.3. Post-independence era: The Patent Act, 1970: After independence, the need for structured and well-organized patent laws arose, and this time Indians wanted them in Favor of or only for Indian and local inventors, prioritizing essential sectors like pharmaceuticals and agriculture and wanting to develop more in the textile industry. In 1959, the inquiry committee was established for the revision of already existing patent laws. The Aiyengar Committee Patent Report (1959), led by Justice N. Rajagopalan Aiyengar, highlighted the provisions of the 1911 Act, suggested desired amendments and reforms in this Act, and included patents for food products, chemicals, and pharmaceuticals to prevent monopolies, reduce the dependency on foreign technologies, and promote Indian innovations.
After these recommendations, the Patents Act, of 1970, came into force. Its key features are stated below:
Process patents are recognized in this act for the process of manufacturing and excluded product patents for certain sectors like food, chemicals, and pharmaceuticals.
Under this act, the grant of a patent is only given to innovations that are novel, non-obvious, and beneficial for the development of industries and for the public welfare.
The duration of a patent under the act is also changed; for process patents, it is 5 years from the grant date or 7 years from the filing date. And for other patents, it’s 14 years from the date of filing.
In this act, it is also mandatory to license the inventions to make them accessible to the public, and if the patented invention is not available to the public, then under this act, the compulsory license should be granted.
This act also provides provisions for the revocation of the rights of the patents if they are misused or if it is a matter contrary to the public interest.
This act also established the Office of Controller General of Patents, designs, and Trademarks to look after the administration of the patent laws.
This act also provides a voluntary license, where the patentee can provide the license of the invention to others.
This act also prioritizes public welfare and promotes indigenous research and development along with the development of domestic industries like agriculture and pharmaceuticals.
3. TRIPS AGREEMENT AND ITS IMPACT ON INDIAN PATENT LAW
The TRIPS agreement has transformed patent law and also reformed it with several amendments, which we will discuss below:
This agreement was introduced by the World Trade Organization in 1995, and its implementation affects Indian patent laws and aligns with global standards while balancing domestic socio-economic interests.
This agreement protects both processes and product patents in all fields of technology with uniform patent laws. This agreement promotes non-discrimination and says that patent laws must apply equally across sectors. It also allows compulsory licenses under specific conditions, such as national emergencies or public health concerns.
With these features, this agreement has transformed the Indian patent laws and made them more accessible.
The amendments this agreement has brought are, firstly, it introduced the mailbox system in 1999, which was excluded earlier.
In the 2002 amendment, it strengthened procedural aspects of patent law and introduced a uniform patent term of 20 years. Also, make the enforcement measures for the patent infringement strong.
It also reintroduced the product patents in the 2005 amendment in pharmaceuticals, chemicals, and biotechnology. Along with this, it added provisions to prevent the evergreening of patents under Section 3(d).
These amendments resulted in the encouragement of foreign direct investment (FDI) and technology transfer. India’s generic drug industry has started growing rapidly due to these reforms. The flexibility of the TRIPS agreement was used by India to prioritize the public welfare under section 3(d), which ensures patents are granted only to genuine, novel, and non-obvious innovations.
4. RECENT DEVELOPMENTS
Patent laws have gone through several amendments to get established in India, and the recent developments in the context of patent laws are that the Indian patent offices have modernized their operations with online and e-examinations, which have reduced the pendency of examinations of patent examinations because previously for that they had to hire patent examiners, and this procedure took so much time. And, India adopted the National Intellectual Property Law Policy in 2016, which promoted awareness about the rights of intellectual property and also strengthened its enforcement procedure. These developments have raised the bar of patent applications in India and also rapidly brought growth in the applications of patents. Now India has collaborated with international innovators; these collaborations are PPH (patent prosecution highway) and, very importantly, the Paris Convention and PCT (patent cooperation treaty). These collaborations expanded the scope of Indian patent laws and supported them on a global level.
5. VERDICT
To conclude this discussion, we can say that the Indian patent laws have gone through a lot of reforms and amendments before and after independence. The TRIPS agreement played a very crucial role in the formation of patent laws by recommending spectacular amendments and aligning them with global intellectual property standards. The Patent Act of 1970 has made a very well-maintained balance between promoting innovations, promoting public interest, and protecting economic growth. In the verdict, we can say that the evolution of India's patent laws showcases a pro-public welfare approach to intellectual property. Its provision under Section 3(d) for issuing compulsory licenses in case of a national emergency and for public health and welfare showcases its priority for public welfare and makes it unique in every sense.
6. References
III. https://www.galgotiasuniversity.edu.in/pdfs/issue4.pdf
IV. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4472790