Types of Patents

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Chapter: Forensic Pharmacy : WTO, GATS and The Indian Patents Act, 1970 with Amendments

(i) Ordinary patent (ii) Patent for addition (iii) Patent granted under convention agreement


Types of Patents

(i) Ordinary patent: It is granted on an ordinary application made.

(ii) Patent for addition : It is secured for an improvement or modification to granted patent. It remains in force till the original patent is valid.

(iii) Patent granted under convention agreement : It is based on an application made in a Convention Country notified under Section 133 of the Act. The convention application has to be made within 12 months from the date of the first application.

It is now possible to secure patent protection for new products and the processes of preparation in Science & Technology and also for a new hardware.

The main criteria for securing patents are:

(i) The invention must be new.

(ii) It should involve inventive step.

(iii) The invention must be industrially applicable and useful to the society.

Eventhough, product-patent is the key factor in post-WTO era, it does not prevent a person to get a patent for developing alternate and commercially viable new processes for the new product. The alternate and commercially viable process developed can not be commercially used without getting the permission ofthe valid product patent holder.

Term of Patent

In accordance with amendment in 2002 to Section 33, the term of patent is 20 years and shall also be applicable to those patents granted under The Patents Act, 1970 from the date of amendment.

Administration

The Head Quarter of Patent Office is in Kolkatta with its branches in Mumbai, Delhi and Chennai. The Nodal Ministry is Ministry ofCommerce and Industry, Department of Industrial Policy and Promotion, Government ofIndia, Udyog Bhavan, New Delhi.

Procedure for Patenting

The application filed in the prescribed forms along with the prescribed fees accompanied by Provisional is required to be made by inventor or his legal representative to the officer-in-charge of patent office. The provisional Specifications describe essential features of invention whereas, Complete Specifications include full description, statement, detailed method, scope, utility, etc. The Complete Specifications should be produced within 12 months of filing of Provisional Specification. No extension beyond this period is possible in case of applications filed on or after 1-1-2005.

The Patent Office refers the contents of Complete Specification to scientific adviser or examiner for scrutiny. Examiner's report is obtained within 18 months either to accept or modify or reject. The new amendment introduced is the facility for with-drawing the application before publication on the expiry of 18 months from the date of filing.

The Controller General of Patents, in case of acceptance, notifies and advertises in Official Gazette. Any objection for publication of patent from public should be received within one year from the date of publication of grant of patent (Notice of Opposition). The opportunity is given to hear and interact and only on satisfying all conditions, the Patent is granted with seal of office and entry of date of sealing in register.

Requirements

The documents required in duplicate for filing an application for patent in India are as follows:

(i) Application Form 1 suitably modified.

(ii) Provisional Certification (Form 2) or Complete Specification (Form 2).

(iii) Abstract of invention.

(iv) Any drawings, if necessary.

(v) Statement and Undertaking (Form 3)

(vi) Prescribed fees.

Inventions Patentable

Development and process for the preparation of new compounds, new materials, new formulations or synergistic compositions; improvement of an existing process for production of known compounds, known compositions and known materials; development of new medical kit, new machine/device, new hardware incorporating a software and improved machine device are patentable.

Patent Search

The patents are categorized under the National Patent Systems of every country as well as under an International Patent Classification System (IPC). The IPC system of classification categorizes the entire Science and Technology into 8 main headings, each heading is further classified into about 95000 sub-headings.

Rights of Patentee

The rights of the patentee are defined in Section 48 of the Act. The grant of a product patent prevents a person in commercially utilizing the process he has developed for the preparation of the product patent holder. The patent holders for respective invention can come together and enter into joint agreement for mutual benefits, if the alternate process developed has significant commercial utility.

The Patentee has an exclusive right to make use ofthe patent within the period of patent, sell or distribute such an article. He has right to prevent third parties who do not have his consent from the act of using that process.

For Government use under special provisions there is no restriction for importing or making use of provision. The patent is required to be surrendered if complaint is made and upheld by the order of High Court.

Infringement of Patent

When the legal rights in a valid patent are commercially exploited without the permission of the patentee, it amounts to infringement of patent.

The relief, which a court may grant in any suit for infringement includes an injunction and at the option of the plaintiff either damages or an account of profits.

Other Features

·           The legal rights in Intellectual Property secured (except for Copy Right) in one country can not be enforced in another country.

·           For availing the benefits of the Patent Cooperation Treaty (PCT) Rules, a single application (International Application) has been made in respect of designated member countries of PCT, where protection is desired. Afterwards the applicant, however, has to make corresponding applications in the member countries of PCT.

·           The amendments effected have a provision for establishment of an "Appeal Board", the qualifications for the members of the Board which shall look into IP disputes and provide speedy, timely and inexpensive disposal of appeals.

·           "Protection of National Security" clause has been inserted whereby, the Central Government can take any action including revocation of a patent in the interest of the security of India by issuing notification in the Official Gazettt: to that effect.

The Patent Amendment 2005 covering product protection has provided an opportunity for domestic players to invest in R&D and bring out successful drugs at a greatly reduced cost.

 

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