Scientists, Technologists, Engineers and Technicians, who engage in useful inventions, are called inventors. Such inventors use their skills and inventive (intellectual) ingenuity to invent new products and processes. Inventions are the products of the inventive and creative labor of the inventors. Inventions are also the products of investment made in research and development (R&D) by the investors, institutions and entrepreneurs. Sometime the inventors and the people who invest necessary capital in R&D are one and the same. In many cases, the inventive scientists, technologists and engineers are the employees of the institutions that mobilize resources and organize inventive brains for the purpose of discoveries and inventions by sustained R&D efforts. The object of invention is to raise knowledge base and production and productivity and quality and cost-effectiveness in various sectors of economy and provide the society with goods and services. 

Thus, an invention, forming an integral component of knowledge base, becomes the property of the inventor(s) and/or investor(s) to the extent the invention is proprietary in nature and the rest remaining in the public domain to the extent the invention is generic in nature. It is the State that grants a monopoly right for a limited period over the new invention to its inventor(s) and/or owner applicants so as to encourage him (them) to disclose the nature of invention by means of working by himself (themselves) or through third party by licensing. 

Patents, designs and trademarks are called 'Industrial Property Rights'. Together with copyright they are called 'Intellectual Property Rights'. Today, the intellectual property right (IPR) has engulfed a variety of intellectual property rights which include plant variety protection rights, animal variety protection rights, semiconductor and printed circuits protection rights, software protection rights, information technology (IT) protection rights, geographical indicators, utility models, service marks protection rights, community intellectual property protection rights etc. Among all these, patents are the most important forms of IPR for scientists, technologists, engineers, technicians, entrepreneurs, investors/venture capitalists and manufacturing industries. 

What is patent?

The word patent is the opposite of the word latent. Where the latent is hidden, patent is kept open and disclosed to the public by publication in an official gazette or otherwise. Hence the protection of monopoly right to market the invention by the inventor or his assignee by license or otherwise is required to encourage its disclosure and arouse competitive spirit among the inventors for continuous inventions and innovations. 

A patent is a monopoly right granted by the State to the exclusive use of an invention by the inventor/applicant/assignee/licensee. As the patent right is granted by a State its jurisdiction is limited to the territorial boundaries of that particular state only. Hence the need for filing separate patent application in each and every country where a monopoly market right is sought to be protected. This right is only for a limited period say 20 years in many countries and lesser in some countries like India where it is 7 years from the date of filing or 5 years from the date of grant which ever is shorter in case of inventions relating to food, drug and medicine and 14 years from the date of filing in all other cases. However, there is a demand from TRIPS of WTO and other developed countries like USA to raise the period of exclusiveness to 20 years. The Indian Patents Act 1970 in its 2^nd Amendment in 1999 envisages raising of this period of term to 20 years uniformly for all inventions. 

This limited period of exclusive use is called "term of the patent". The owner of the patent has to pay renewal fee to the government to keep the patent in force. Or else, the term will lapse and the patent becomes a generic property in the public domain for free use. Also at the end of the term of 20 years or less, as the case may be, the patent becomes the generic property in the public domain for free use. The inventor or his assignee must apply to the Patent Office of each country the details of his invention and claims in the prescribed form along with requisite fees for the grant of patent right. The person who applies to the Patent Office is called the applicant. The applicant can be a natural person or a body incorporated like an institution or a company. The inventor is always a natural person. He may be an employee of an institution or a company or self employed inventor.

Fundamental Rules (FR) 48A and 48B govern the working relationship between an employer and his employee in the government organization in the country. According to FR 48A, a government servant whose duties include conduct of scientific research and development of new products and processes, shall not apply for or obtain a patent for any invention made by such government servant save with the permission of the local government and in accordance with such conditions as the local governments may impose. According to FR 48B, a government servant is one for whom FR 48A is applicable. A similar employer-employee relationship may exist in private organization as well. Likewise, a similar employer-employee relationship may also exist universally in many other countries. 

Along with the application, the inventor/assignee/applicant has to disclose the invention completely, in the form of complete specifications and claims including drawings, tables and structures. This complete specification is published by the Patent Office in its official gazette immediately on deciding the worthiness of novelty, non-obviousness and utility of the invention beside satisfying other statutory/legal requirement and hence a fitting subject matter for the grant of patent. In many countries this publication occurs even immediately after filing for inviting public opposition if any before a decision is taken on the grant of patent right. Once published, the copy of such patent application is available for the public for inspection and use as per the provisions of the Patent Act and related Rules. Any body can obtain the copy of the patent specification as published in the gazette or otherwise on payment of a requisite fee for the purpose of opposition or other use as permitted by the law.
 
 

The Importance of Patent to the Patentee

A patentee is the owner of the patent right. He may be the inventor or the assignee applicant or a licensee. Such a patentee, in many ways, can use the monopoly right in the patent grant. He can use it himself to develop his business based on the invention or secure protection from the competitors during the term of the patent. He can also allow others to use his patented invention for a fee by grant of a license or otherwise on mutually agreed terms and conditions. Or else, the patentee can sell his patented invention outright for an adequate fee or royalty or consideration. 

The Importance of Patent to the Society

When a patentee commences working his inventions in any one ore more ways as illustrated above, the society gets immensely benefited by way of availability of newer, more cost-effective and quality products and services. Full details of the inventions are made available to the public by publication in the official gazette or otherwise and by commercialization by additional investment in newer manufacturing facilities. Thus, the knowledge in the patented invention adds to the generic knowledge base. During the term of the patent it induces an element of competition and cooperation among the manufacturing industries thus leading to further investment in R&D and inventions and innovations besides transfer by licensing and cross licensing. On expire of the term of the patent, the knowledge in the invention is shifted to the public domain for free use by anyone. Even during the term of the patent, the knowledge in the invention could be made use of for non-commercial governmental use in the public interest as well as for R&D purposes by researchers free of infringement. Further, during the term of the patent, any interested industry, entrepreneur or party can acquire the knowledge by transfer, under a licensing agreement, whose contractual terms and conditions may be settled by mutual negotiations. 

Subject Matter of Patent

In most countries, any invention, to be a fitting subject matter for patent grant, must satisfy the following essential conditions. First, an invention must be novel (new). Second, the invention must possess an inventive (intellectual) ingenuity and be non-obvious to the persons skilled in the art. Third, the invention must be capable of an industrial application (economic/commercial utility). Fourth and last the said invention must not be from the categories of inventions specifically declared by the law of the land ‘as not inventions for the purpose of patent grant’ and it should not be contrary to ‘the laws of nature and public policy/morality’.

Patents Act 1970 and Patents Rules 1972 and Patents (1^st and 2^nd) Amendment Bills 1999 and Patents Rules (1^st and 2^nd) Amendments are the laws, rules and procedures that regulate patents filings and their grant and related activities in India. Development and managing IP laws including patent laws are subject to the directions of the Constitution of India and other related statutory laws and international obligations under Conventions and International Treaties like Paris Convention, Patent Cooperation Treaty, Trade Related Intellectual Property Rights (TRIPS) of erstwhile General Agreement on Trade and Tariffs (GATT) and its substitute World Trade Organization (WTO). In principle, a patent right, as monopoly IP right over an invention, as in the case of any other property right is the balancing act of many conflicting interests both private and public and national and international. Also developing intellectual property laws, especially that of patent laws, must be subject to the basic principle of encouraging every one to contribute in terms of invention in accordance with his own intellectual capability and share the right in the intellectual property proportionate to the degree of his intellectual contribution in the said invention, 
 
 

Patent Information

Patent information relates to both legal provisions as well as scientific and technical information. Legal provisions are contained in the relevant IP/Patent Act and Rules. Scientific and technical information concerning the inventions is disclosed in the Patent Document. Inventions in the context of patents are the successful solutions to hither to unsolved technical problems. Patent information also relates to organizational setup, institutional framework and patent facilitation centres and databases available both in the national and international context.

Legal Provisions in the Indian Context

We briefly describe the salient features of Indian Patents Act 1970 and its two Amendments in 1999. Section 2(1) in the Patents Act 1970 provides comprehensive definition of various terminologies in use with reference to patentability of the inventions. 

Food: It means any article of nourishment and includes any substance intended for the use of babies, invalids or convalescents as an article of food or drink (section 2(1) (g)). 

Invention: According to section 2(1) (j), an 'invention' means any new and useful (i) art, process, method or manner of manufacture; (ii) machine, apparatus or other article; (iii) substance produced by manufacture; and includes any new and useful improvement of any of them and the alleged invention. 

Patents (2^nd Amendment) Bill 1999 envisages enlarging the scope of the definition of the word invention to mean a new product or process involving an inventive step and be useful in any kind of industry (section 2(1) (j) (ac)). For the word any inventive step means a features that makes the invention non-obvious to a person ordinarily skilled in the art (section (2) (1) (j) (a)). 

Medicine or Drug: According to section 2(1) (1), drug or medicine includes (i) all medicines for internal or external use of human beings are animals; (ii) all substances intended to be used for diagnosis or in the treatment, mitigation or prevention of diseases in human beings or animals; (iii) all substances meant for the maintenance of public health or prevention or control of any epidemic/disease among human beings or animals; (iv) insecticides, germicides, fungicides, weedicides and all such other substances meant for the protection or prevention of plants from attacks; and (v) all chemical substances generally used as intermediates in the preparation/manufacture of any of the medicines or substances as referred above. 

Patent: It means a patent granted under Indian Patents Act 1970 and includes for the purposes of different sections of this Act (section 2(1) (m)). 

Patented Article and Patented Process: It means respectively an article or process for which a patent is in force (section 2(1) (O)).

Specific Features of Patent: A Patent is always in respect of an invention (i.e. manmade) and not a discovery and in respect of a single invention. It may be either a substance (product) or a process or both. It is difficult in many cases to separate process from the product. For a complete patent, specifications and claims must be clearly and distinctly indicated. It is the claims and claims alone that makes a patent. 

According to section 3 of Indian Patents Act 1970, the following inventions are not considered as inventions for the purpose of patent grant: (a) an invention that is frivolous and claims something contrary to the established natural laws; (b) an invention whose primary or intended use is against the law or morality or injurious to the public health; (c) a mere discovery of a scientific principle or the formulation of an abstract theory; (d) a mere discovery of a new property or new use of a known substance, or a mere use of a known process, machine or apparatus, unless such process results in a new product or employs at least new reactant; (e) a substance obtained by a mere admixture, resulting in the aggregation of the properties of the components there of or a process of producing such substance; (f) a mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known manner; (g) a method or process of testing applicable during the process of manufacture for making the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of any manufacture; (h) a method of agriculture or horticulture and (i) any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to make them free of diseases or to enhance their economic value or use value or that of their end products.

Such wide exemptions are generally seen in practice in many other countries also. However, developed countries like USA and TRIPS provisions view such exemptions in Indian Patents Act 1970 as wide and restrictive of patentability of inventions. Hence the urge by the TRIPS provisions to narrow down such wide exemptions by means of suitable amendments. 

Invention relating to atomic energy that falls under the provisions of section 20 (1) of the Atomic Energy Act 1962 is not the subject matter for the purpose of patent grant (section 4 of Indian Patents Act 1970). This is the provision universally held by many other countries also. 

According to Section 5 of Patents Act 1970, there are certain inventions where only methods or processes of manufacture are given patent rights. The provision is slightly modified in the section 5(1) (a) & (b) of Indian Patents (1^st Amendment) Bill 1999. Accordingly, the cases of inventions where (a) claiming substances that could be used as food or medicine or drug; or (b) relating to substances which are prepared by chemical processes (including alloys, optical glass, semi conductors and inter metallic compounds) no patent is granted in respect of claims for the substances per se. In such cases patent right is granted only for process or method of manufacture. Such an exemption was incorporated in the Indian Patents Act 1970 to enable Indian Chemical & Pharmaceutical Industries to develop cost-effective and alternate processes to manufacture known substances (products) in food, chemicals, drugs and medicines. Such a provision helped Indian industries to attain a state of self-reliance in the last three decades. However, such exemptions are viewed as wide by the developed countries like USA and TRIPS provisions. Hence the demand to amend Indian Patents Act 1970 to accord patent rights to all inventions in all fields of S&T, both products and processes. Infact, Indian Patents Act 1911 did provide such provisions to accord patent rights to both products and processes in all fields of S&T. 

Lack of product patents in food, chemicals, drugs and medicines in the Indian Patents Act is viewed as a limiting factor in advancing investment, inventions and technology transfer in the emerging areas of S&T. Hence the need for suitable amendments to Indian Patents Act with in-built safety mechanism to protect public policy and national security.

Accordingly the Patents (1^st Amendment) Bill 1999 contains a clause for Exclusive Marketing Right (EMR) in Chapter IV - A (Section 24A-B) in lieu of product patents for the substances that could be used as medicine or drug for a limited period, upto December 2004, to be in harmony with 'Trips' provisions.

Further, a chemical process is defined to include bio-chemical, bio-technological and microbiological process as well (Section 5 (2) of Patents (2^nd Amendment) Bill 1999).

Contents of a patent specification must be disclosed in accordance with the provisions of the Section 10(4) of Patents Act 1970. Disclosure of full specifications in the patent applications in the prescribed manner is mandatory in respect of (a) the invention and its operation or the method by which it is performed, (b) the best method of performing the invention, and (c) the claims defining the scope of the invention for which legal protection is required. The principal Patents Act 1970 is silent on the manner of describing and disclosing the specifications of bio-technological products (micro- organisms). This difficulty, though faced world-wide, is overcome by depositing such micro organisms in the approved micro organism depository banks/institutions and obtaining a ‘certificate of accession number’ containing the detailed description about the behavior of the micro organism and providing the same in the patent application as part of s