ABSTRACT

A patent is considered an exclusive and absolute right given to an individual or an inventor, who invented something, based on legal provisions and laws. These patent rights restrict other individuals from utilizing, selling, and imitating this particular invention that too within the territorial jurisdiction and durability of the patent. Further, there should be thorough research that these inventions are not the ideas, which previously existed. In this context, the individual should be conscious of already existing patents and should invent accordingly. This right can be availed on procedure, design, methodology, and product based on the utility, distinctiveness, and function of the product.

As per the stipulated legal provisions, rules, regulations, and guidelines of uniqueness and specified terms and conditions the source of protection and the invention of a design, product or methodology should be done. Generally, the period for patent protection of an invention is 20 years. Regardless, every country has its own patent rules and regulations. Regardless, everything has ups and downs. Consequently, there are a few challenges and emerging issues faced by patents in the modern era.

There are numerous issues faced by patents including the actual functioning of patent rights and laws, the challenges regarding issuance of patent rights and protection, especially in the invention of technology, and there are some long-term economical and sociological effects on patents. Apart from these, there are current and emerging challenges including the issues of patents in the fields of pharmaceuticals, biotechnology and public health. In light of this, the article discusses these challenges with relevant legal provisions and case laws.

INTRODUCTION

It is admitted that the granting of patents, protection of inventions, and safeguarding of their rights are one of the most essential concerns. This patent right usually refrains others from gaining profit and name in a malafide way. The first ever patent was given to a German for creating a model of a mill, and the first English patent, which lasted for 20 years, was given to John of Utynam for his innovative work creating “stained glass”. In contrast, the French system created a structure that introduced registering and assessment while also highlighting its significance. [Image Source: Shutterstock]

The standard rules followed by the Indian legal system for patent protection of inventions are according to the British Patent Law in the name of Act VI, 1852. The period granted to the inventors is 14 years. This Act was revised and renamed Act XV, which was then revised and renamed the Patents and Design Protection Act, 1883, which over time underwent further changes and had been renamed the Protection of Inventions Act, 1888. It was from this point that the Indian Patents and Designs Act began to take shape.

Depending upon the nation’s rules and regulations, the legal framework for granting and protecting of rights of patents can be given to the patentee. Where the patent laws differ from country to country, these are also evolving and emerging with recent trends. As per the “World Intellectual Property Organisation”, there was an increase in the number of applications related to patents. This was further supported by the advancement of the rapid increase in technology. Due to this increase in the utility of patents, there is a required necessity to address the emerging issues related to patents.

TYPES OF PATENTS

In the context of types of patents, the most fundamental and common types which are widely utilized are utility patents, design patents, plant patents, etc.

1. Utility patent:

It is the most usual type of patent. This protects the patent methods of construction and formulation of an invention including the manufacturing and composing of ingredients of the invention. If changes are made to an already existing product or any improvements regarding the same, then also the utility patent can be granted. Advanced technicalities, digital-related inventions, and software for industrial and commercial are major concerns of the protection of utility-based patents.

2. Design Patent

It is also known as the “surface ornamentation” of an object. Its basic requirement is distinguishing a design when compared to an object. This design patent protects the presentation of protection. In the case of Sears, Roebuck & Co. v. Stiffel Co ., it was observed that the defendant had acquired a design patent for a “pole lamp” which had achieved significant commercial success. The defendant suffered a loss when the petitioner started selling a comparable product for less money. Against the petitioner, a patent violation lawsuit was filed. The respondent demanded compensation from the petitioner and forbade the sale of the lamps.

3. Plant patents

Protections of emerging, new and unique plants are protected under plant patents. However, such plants cannot be generated from tubers, must be found in a cultivated form, and must be developed asexually, which serves as evidence that the applicant has grown the plant, among other restrictions.

EMERGING ISSUES AND CHALLENGES FACED BY PATIENTS:

1. in the invention of Pharmaceuticals

Another major issue is as there is an option of selling patents, to gain profits the companies are purchasing licenses for their drugs instead of wasting money on medical research. This left behind the protection of patents unregulated leading to “new markets”. The main objective of the patent protection procedure, which was intended to make sure that patents are a way to encourage increased investments in researching new medicines, appears to have been defeated by this.

2. in the field of Biotechnology

[Image Source: US Chamber Foundation]

With major contributions to inventing and developing in the fields of the medical sciences, energy, and environmental sectors, biotechnology is playing a major role in countries' economies and hence patent laws are applicable as well. As this industry includes extensive research, the companies are showing interest to invest their maximum revenue in manufacturing and developing products in this industry. On the other hand, copying such things would be inexpensive. The threat of copying arises when a corporation engages in such particular research, in addition to the high risks associated with it as well as the anticipation that years of research would result in significant and distinctive ideas with substantial economic value. Here is where the patent laws come into play and restrain the possibility of imitating the products of a company.

Sometimes there was an invention made by biotechnology companies and they want to get a patent so they provide it in the form of a license to the companies by enabling them to launch it in the market. Further, it is in the hand of the companies to develop the ideology and their capability to patent and license, and earn revenue or profit from it. The issue arises in the situation that when can the invention of biotechnology can be patented and when cannot. The invention must meet certain criteria to be patentable, including innovation, originality of the technique used, and industrial applicability. However, there is some controversy about whether additional criteria should be accomplished as well.

The case law in this regard is Dimminaco A.G. v. Controller of Patents and Designs & Ors , where the patent application was issued by the petitioner related to the invention of an “infectious Bursitis Vaccine”. The patent examiner officer declared that this was not constituted as an invention but can be considered as food or drug as per section 2(i)(i) of the Patent Act, 1970. The Examiner's objection under section 2(i)(i) was argued to be unjustified by the appellant because there was no restriction against the technique of creation of a substance that was already patented, even though the procedure used a live virus. Additionally, it was claimed that present legal restrictions did not prevent the patenting of a finished product that contained a living virus. The Rule of Law would be violated if a patent grant were to be impacted and rejected due to administration regulations because no administrative policy can override legal provisions. It was held that the patent application needed to be reassessed again they should be carefully examined whether it falls under invention or not.

3. In the field of public health

There was a major impact on the sector of public health due to inventive technologies in the medical sciences such as “Biotechnology, nanotechnology, and pharmaceutical sciences. The main objective for better public health is maintaining a balance between the inventor's authority to develop a method or technology to advance healthcare, as well as how to use it to serve the needs of the larger public. Patents serve as a catalyst, forcing inventors to make the necessary financial investments in new medicines, treatments, and clinical testing.

Developing nations frequently bargain with patent owners to get the medicines and equipment for them at a concession. This has previously occurred when specific corporations promised to provide medications for the treatment of deadly and serious diseases to less developed or wealthy nations. Public health may be preserved when the public and commercial sectors work together, with the government highlighting the value of cooperation and licensing new technologies, among other things.

SUGGESTIONS AND CONCLUSIONS

Researchers are working to address these challenges regarding patent protection. One of the solutions can be “forced licensing”. This solution can be suggestible especially in the technology industry through awarding the inventor and speeding up the invention. The pharmaceutical industry must strengthen the patent protection process by reducing the amount of time consumed waiting for new treatments to be approved and the rules that are driving up the price of individual treatments.

It may be challenging to predict the future of protecting patents in diverse industries, but businesses and policymakers should give priority to striking a balance between the protection of consumer rights and the promotion of innovation. The increase in the protection of the procedure of patent rights can assure that we are moving forward toward new ideas that will help us all. One might insist on a technique that fosters creativity within a healthy competing atmosphere concerning various disciplines of importance including biotechnology and technology. The increase in the protection of the procedure of patent rights can assure that we are moving forward toward new ideas that will help us all.

Author: Keerthi,  a Intern at Khurana & Khurana, Advocates and IP Attorney. in case of any query, contact us at Global Patent Filing, or write back us via email at support@globalpatentfiling.com.