WHAT IS A PATENT? – AN INTRODUCTION

A Patent is said to be an Intellectual Property Right (IPR) which grants a legal right to the owner of an invention or innovation to have the sole and exclusive right to exploit a new creation. Any person other than the patent owner is legally barred from producing, selling or even using the same invention.

Most patents are valid for 20 years from the date of application. However, this period may vary depending on the type of invention. For instance, design patents have a time period of 10 years from the date the patent is granted.

There are 3 major types of patents:

• Utility Patents – These are the most common patents granted. Utility patents cover innovation or invention in a product, process or a machine.

• Design Patents–Design Patents secure the aesthetic look of a manufactured good. The design patent protects only the appearance of an article, not its functional features. One can only claim the unique shape, design, look of an article.

• Plant Patents – As the name suggests, plant patents are granted to anyone inventing or discovering an asexually reproducing and distinct variety of plants.

GLOBAL TRENDS IN PATENT FILING

The past few years have seen a drastic increase in the application for patents. The global number of applications was 1 million in the year 1995, which increased to 2 million in 2010. In 2016, the number further increased to 3 million. In 2021, the Asia-Pacific region has been responsible for more than two-thirds (64%) of the global patent applications. In largely, India, China and South Korea have had a major contribution In total, over 1.6 million patents were granted all over the world in 2021 .

The top countries which granted patents in 2021 are:

1. China - 695,946

2. United States of America – 327,307

3. Japan – 184,372

4. Republic of Korea – 145,882

5. European Union– 108,799

6. India – 30,721

This trend of obtaining patents by inventors to shield their discoveries from being misused is a rapidly growing phenomenon across the world.

HISTORY OF PATENT

In order to safeguard the interests of inventions, the Act VI of 1856 which was based on the British Patent Law of 1852 was enacted. It was initially given for the period of 14 years to inventors of new technology. The Act was further amended as Act XV Patent Monopolies Act, which was popularly known as exclusive privileges; this was also filed for 14 years.

In 1872, a new act was introduced which was called as Patterns and Design Protection Act. A decade later, in 1883, the Act of Protection of Inventions was introduced. India put forth it’s own The Indian Patents & Designs Act. It replaced all previous Acts. According to the Act, all patent administration was brought under the Controller of Patent in India. Finally, India passed The Patent (Amendment) Act of 2005, which extended the period of patents for 20 years.

THE INTERNATIONAL PATENT SYSTEM

The Patent Cooperation Treaty or PCT of 1970 is a treaty which provides an international system for patent applications. It currently has 157 contracting states and is registered under the World Intellectual Property Organization (WIPO). The PCT provides a more comprehensible and easy to understand series of steps to file an application for patents. However, the ultimate authority to grant patents remains with the national and regional offices. Had it not been for the PCT, each country would have needed an individual, independent system of patent filing. An applicant has the effect of filing in multiple countries at the same time. In simple words, filing an international application under the PCT, an inventor can seek security for his inventions in a large number of countries. The Treaty facilitates public access to a wealth of technical information relating to new inventions. Any formal examinations, retrieval and international publication is done by a single office.

PROCEDURE FOR FILING AN APPLICATION UNDER PATENT COOPERATION TREATY

1. To file an international application for patent, the inventor must first file an application locally. The country must be a contracting state of the PCT.

2. Then, a national application along with the required fees has to be paid. Within 12 months, an international PCT application has to be filed in the national office or directly to the receiving office of WIPO in Geneva, who conducts a physical check and international standards check.

3. An International Search Authority presents a written report to decide whether the filed application can be qualified to be granted a patent or not. This report has to be presented within 16 months from the date of filing.

4. Next, an international preliminary examination is also conducted after which the search authority will determine the patentability.

5. The process is completed within 30 months from the date of the application. The national office awards the applicant with a patent after all the requirements are fulfilled. Subsequently, his rights are safeguarded in all the contracting states.

CASE STUDIES

F. Hoffmann-La Roche Ltd v. Cipla Ltd., Mumbai Central

The suit is regarding the patent infringement, which included public interest and pricing issues. The case is between the India leading pharmaceutical company Cipla and two foreign multinational firms F. Hoffmann-La Roche Ltd. and OSI Pharmaceuticals Inc.

The appellant filed a case of permanent injunction that refrained the defendant from obtaining a patent, rendition of accounts, damages and delivery. The decision was held in favour of Cipla pharmaceuticals. Roche sued Cipla on the account that Cipla’s product Erlocip violates the former’s Indian patent claiming “Erlotinib Hydrocloride”. The Delhi High Court rejected Roche’s plea on the ground that it is for the public interest and also rejected their plea to grant temporary injunction upon the drug which was introduced by Cipla. Roche even appealed to the sessions judge who rejected the plea and upheld the decision of the trial judge. Roche later filed a plea in the Supreme Court which was later rejected on the ground that there was already an ongoing trial in Delhi High Court.

Dr Snehlata C. Gupte v. Union of India &Ors

The case defines the time limit for when the patent can be granted under the Patent Act, 1970. It simplifies the time limit of obtaining the patent and issue of the certificate for the same. The Delhi High Court stated that the date of granting of patent would be the date on which controller passes an order but the issue of the certificate at a future date would be nothing but a legal formality. Hence, the case provides the proper date for granting of the patents.

CONCLUSION

Having a patent not only provides a sense of security to the inventor, but also encourages him to think of brand new and better techniques. It encourages innovation and aides in overall advancement of the world. Just having an inspiring business is not enough; one has to take appropriate measures to safeguard it. With new developments, filing for patents has become ever so easy. There are online forums and websites explaining the whole process in detail. Nowadays patents for simultaneous countries can be obtained just by applying at one place. As people explore and discover more inventions, they will be looking forward to seeking protection for them; and the requirement for patents all around the world will keep on rising.

Author : Mudit Sood, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.