Patents

Inventions are the subject matter of patents. In India, the Patents Act, 1970, deals with the patenting of inventions. The board arrangement is as follows: a person claiming to be the inventor applies to the controller of patents, for patent rights. The controller checks the claim with respect to noveity and usefulness of the idea and other requirements of law. If the application is successful, the person gets a patient right years. During this period no one can use the invention without an authorisation from the person.

Functioning of the Patent Act Under the Patents Act, 1970, the government of India has created the office of the Controller Of Patents. The head office is at Kolkata and there are branch offices at Mumbai, Delhi and Chennai. An application for the grant of a patent can be made by an inventor or any other person to whom the inventor has given the right. For example, a scientist working for a research and development laboratory may had assigned his rights in his inventions, to his employer. In such a case, the employer will make the patent application. The application is a detailed one and it requires the describing of the invention in all its aspects, including its newness, use and best method of performance. The application contains descriptions and drawings to aid the description.

Rights of Patentee The person in whose favour a parent is granted is called a patentee. He can deal with the patent right like any other property. He can sell it to another person. He can grant a licens

to use the patent property to others. He can also assign such property to another person. The patent holder has the exclusive rights to make, use, exercise, sell or distribute the invention in India. Any use without license or other authorisation from the patent holder, is an infringement. The patent holder can move the court to restrain the violator and claim damages.

What can be Patented? We now come to the important question of what is an invention and what can be patented. An invention had been defined as a new product or process involving an inventive step and capable of industrial application. To amplify, an inventive step has been defined as an invention not obvious to a person skilled in the art. Thus, for an idea to qualify as an invention, the three requisites of novelty or inventiveness, non obviousness and usefulness should be fulfilled. This requirement has been reiterated negatively by section 3, by mentioning the inventions which cannot be patented. The different clauses state as follows: y An invention which is frivolous of which claims anything obviously contrary to well established natural laws; y The mere discovery of a scientific principle or the formulation of an abstract theory; or discovery of any living thing or non living substance occurring in nature; y The mere discovery of any new property or new use for a known substance or of the mere use if a known process, machine or apparatus, unless such known process results in a new product or employs at least one new reactant; y A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substances; y The mere arrangement or re-arrangement or duplication of known devices, each functioning independently of one another, in a known way;

While deciding disputes or novelty, non-obviousness and usefulness, novelty can be the hardest to settle on. An inventor does not produce an invention from nowhere. Every person works only with the existing ideas, materials, machines and substances. Thus, for example, it is electricity that is used to create a heater. A heater is the basis upon which the idea of an oven is based. The idea for a microwave works upon the idea of an oven. To improve cooking in a microwave, it is further developed and a moving table at the bottom of the microwave is added to make exposure uniform. Each person works with the existing thing. Thus, when one has produces a novel thing and when he has not, required an examination of the facts. The courts have gone over these questions on several occations.

Product vs Process Patent The patent Act,1970 has made a distinction between a product and a process patent. The definition of an invention is-new product or process involving an inventive step and capable of industrial application .Thus an invention can be of either a process or of a product .At times , only the product is of value and relevance. Thus ,in the case of watch ,cycle ,car or television, it is the product which is the invention .Similarly ,a new antibiotic is a product invention ,which has valuable therapeutic properties. Thus a patent could be claimed on such a product. However in the case of antibiotics ,which essentially ,are chemical substances they are prepared through a chemical process. Without the invention of the process ,the antibiotics cannot be made .Thus ,in the case of chemical substances, the process of making the substance is in itself ,an invention .As a result , in the case of medicines and chemicals , one would have a product patent as well as a process patent. The Indian law has not permitted product patent to be given in the case of certain products Section 5 provided as follows:

Inventions are only methods or processes of manufacture patentable 1) In the case of inventions a) claiming substances intended for use or capable of being used as food or as medicine or drug, or b) relating to substances prepared or produced by chemical processes(including alloys, optical glass, semi-conductors and inter-metallic compounds) No patents shall be granted in respect of claim for the substances themselves but claims for the methods or processes of manufacture shall be patentable. In other words, even if a person has produced a new and useful medicine or chemical product, he will not be given patent for it. However, if a person comes up with a new process, whether it is for making new product or for existing product, he can claim a patent for the process .This was a deliberate move of the Indian State.