File Name: indian patent act 1970 and recent amendments .zip
Krishna Tulasi and B. College of Pharmacy, M. R Nagar, Fasalwadi, Sangareddy , India. Creations of brain are called intellect. Since these creations have good commercial value, are called as property. Inventions are intellectual property and can be protected by patents provided the invention is novel, non-obvious, useful and enabled.
India had taken necessary initiation by signing the World Trade Organisation agreement and transformed to global needs. The aim of this article is to enlighten pharmaceutical professionals especially in the field of research and development about planning inventions by thorough review of prior-art, which saves time and money.
A thorough understanding is made possible by providing details of origin; present governing bodies, their role along with the Act that is safeguarding the patent system. The world patent has been coined from a Latin word patent-em meaning open. A patent is a document issued by government to the inventor granting permission to exclusively make, use and sell on disclosure of the invention for a definite period of time.
Unlike patents, monopoly existed where inventions were not disclosed and exclusively sold. In s, the fi rst person who found resources in the Alps dictated property rights for mining, timber and water. As competition progressed special privileges were granted for useful creation. In , fi rst patent was granted to a German for the construction of a model mill.
A monopoly by the British was not granted to sell playing cards due to obviousness. The fi rst English patent was granted for a period of 20 year to John of Utynam on making stained glass. Meanwhile, the French advanced the system by registration and examination. During this period certain privileges were granted to inventors of new manufacturers for a period of 14 year.
In , the act was modified as Act XV in which making, selling, using of inventions in India and authorizing others to do so for 14 year from the date of fi ling the specifi cation.
Initially, inventions were kept secret so that it is well protected. As technology developed periodically, as a matter of national prestige the inventions were exhibited. At the Paris exhibition in , Germany received the fi rst genuine recognition as an industrial nation.
During the Vienna exhibition, it was the Americans who refused to participate. The reason was that the Americans need intellectual protection of their creations from German nations so that the ideas are well protected. This led to the origin of Paris convention in This international treaty helped people of one country to protect their creations in another country, provided the other country is also a member of the convention.
The main advantage is that the inventor has the right of priority of his invention. This in turn was the origin of the protection of industrial property in different countries.
After the UNO was born, three bodies were born in , i. The objective of these organizations was to revive the economy especially in developing countries. The agreement was designed to provide international free trade within member states by regulating and reducing tariffs on traded goods.
The main objective was to encourage trade. Mean while, with the increasing awareness of the intellectual property, in , in order to bring closer to United Nations and other international organizations, BIRPI was shifted from Berne to Geneva.
In , in order to modernize and for better administration of the unions with respect to protection of the intellectual property and artistic works, while fully respecting the independence of each of the union, World Intellectual Property Organization WIPO [ 3 ] replaced the BIRPI. It was under GATT, the biggest advancement in international trade liberalization have come in to existence through multilateral trade negotiations.
The role4 of GATT is to provide a stable and predictable international trade system. Secondly, it acts as a mediator in settling the disputes between countries regarding trade. Thirdly, it holds frequent negotiations, encourages reductions in tariffs so that expansion in world trade becomes possible. The objective of India signing the GATT agreement is to export indigenous products and in turn purchase oil, industrial raw materials, machines, new technology and other things that are domestically needed.
During s and s, continuous reductions of tariffs led to high rate of world trade growth. Thus in the GATT era, trade liberalization helped in trade growth consistently instead production growth.
The role [ 2 , 5 - 7 ] of WIPO is to promote international cooperation with respect to creation, dissemination, use and protection of works of the human mind for economic, social, cultural progress of all mankind.
It enhances a worldwide balance of the creation i. WIPO promotes protection of intellectual property and bring out cooperation among the union. In addition to these, WIPO sets norms, standards and execute legal technical assistance, registration activities for intellectual property protection to member countries. Basically, under the traditional patent system, the inventor has to file applications in each and every country where he wishes to possess a patent.
The Paris Convention provided a great opportunity in claiming the priority date of an earlier application for the subsequent fi lings in foreign countries if the parent and foreign countries are members of the convention.
PCT became an international cooperation treaty with respect to fi ling, searching, and examination of patent applications and dissemination of the technical information contained in it. Patent Cooperation Treaty brings out several benefi ts for the users of patent system i.
In addition to these the main objective of PCT is to facilitate and accelerate access by industries and other sectors to technical information relating to inventions and to assist developing countries in gaining access to technology. Medicines required for human cure were not easily obtained to the public in India. The major source of these medicines was from foreign countries.
The lack of indigenous medicines and their huge demand led to very high prices. It was the external law that infl uenced the local law. Drug prices in India were amongst the highest in the world. In , the Indian Government appointed Justice Rajagopala Ayyangar committee to revise the patent law to comply with the then, industrial needs.
The report suggested for a process patenting so that the medicines reach even the poor sections of the society. The government vested the Patents Act in This revolutionized the economic system in India by providing the medicine at a low price. One should review the Patents Act, and understand how different aspects of intellectual property were considered at that moment.
With the provisions made in the Patents Act, the citizens of India got an opportunity to develop processes. This led to a huge benefit in economic growth of India.
Bulk drug manufacturers made use of this opportunity in manufacturing drugs in bulk and selling at a cheaper price. To overcome this, governments were driven to devise other forms of protection i. In addition to this, advancements in science, individual needs, world trade became complex. Trade services were found promising globalization of world economy, but rules not covered in GATT. These changes undermined the credibility and effectiveness of GATT.
Together, these and other factors infl uenced among GATT members and concluded to vest multilateral system. Having found some set backs in the rules of GATT, the members came together to negotiate issues regarding international trade liberalization, improve the rules.
Starting in , the negotiations ended in Not only the inclusion of the traditional areas of trade in goods, the rules relating, trade in services, trade-related intellectual property rights TRIPS in the negotiations, but also the approval of farm trade by services, market access, anti-dumping rules and the proposed creation of new institution by all member countries dragged attention on Uruguay round. It was on April 15, at Marrakesh, Morocco, the ministries of governments signed the agreement.
Upon signing the agreement all the countries became WTO members. The World Trade Organization mainly deals with agriculture, textiles, clothing, banking, telecommunications, government purchases, industrial standards and products safety, food sanitation regulations and intellectual property. The principle [ 2 , 4 ] is foundation of multilateral trade system by treating foreigners and locals equally, bringing free through negotiations, predicting through binding and transparency, promoting fair competition, encouraging development and economic reforms.
To improve welfare of the people of the member countries WTO bring benefits like peace, solving disputes among countries, free trade that in turn reduce cost of living, choice of products, quality, economic growth and good government. Thus in turn WTO improves welfare of people of the member countries. GATT rules were applied to trade in merchandise goods where as the WTO rules were applied to trade in services, trade-related aspects in intellectual property additionally.
In case of dispute settlements, the WTO system of dispute settlement is faster, automatic and less susceptible to blockage when compared with GATT. One should keep in mind that the amended version of GATT i. In , WIPO became a specialized agency of the United Nations system of organizations to administer the intellectual property matters recognized by the member states of the UN.
The wide variation in the standards and protection of intellectual property, lack of multilateral frame of principles, rules and disciplines dealing with international trade led to tensions in international economic relations. In order to solve these tensions, an agreement i. Thus a provision of adequate intellectual property rights, effective enforcement measures of those rights, multilateral dispute settlements and transitional arrangements were framed.
Issue of Turmeric patent [ 10 , 11 ]. Turmeric is a tropical herb grown in east India. Turmeric powder is widely used in India as a medicine, a food ingredient and a dye to name a few of its uses.
United States awarded patent on turmeric to University of Mississippi medical center in for wound healing property. An exclusive right has been granted to sell and distribute. Basmati rice is a famous cereal of India and is well known for its fragrant taste. It is this rice, which is grown in Basmati region of India possessing its fragrant taste. This rice was well developed by Indian farmers over hundreds of years, but, a Texan company obtained a patent for a cross breed with American long-grain rice.
This made India to realize and file a petition with scientifi c evidence in the United States Patents and Trademarks Offi ce saying that most varieties of Basmati possess these qualities.
Issue of Neem patent [ 13 , 14 ]. The patent is a method of controlling fungi on plants comprising of contacting the fungi with a neem oil formulation. A legal opposition has been filed by India against the grant of the patent. Since then, traditional Indian knowledge is in public.
The EPO identifi ed the lack of novelty, inventive step and possibly form a relevant prior art and revoked the patent.
They also need to promote innovation and encourage the development of domestic industries. Meanwhile, learning from India, China should start to provide its legal professionals with knowledge of global rules, to better further Chinese interests in the world arena. During the negotiations, notwithstanding pointing out that countries at different levels of development should have their own right to decide whether to grant patent right to certain products, 2 India decided to join the nascent World Trade Organization WTO. According to Article At the same time, in accordance with the requirements of Article
It is widely believed that pharmaceutical patents promote monopoly and thus significantly delay the entry of generics. Due to the lack of competition, the prices of medicines rise. The TRIPS Agreement harmonized the life of patent to a minimum of 20 years besides mandating the granting of patents in all fields of technology including food and drugs. Given the legal complexities of the enforcement of the TRIPS agreement, especially in middle income countries, and the critical role countries as India and Brazil play in the manufacture and supply of cheap medicines for their own people and also the needy in other poor countries, legal interpretation of many clauses has been frustratingly slow. This is because the TRIPS Agreement provides for considerable discretion on how the obligations are interpreted and implemented by sovereign governments. Another flexibility is the scope to define patentability standards. While countries cannot, under article
An Act further to amend the Patents Act, Be it enacted by Parliament in the Fifty-third Year of the Republic of India as follows: 1. (1) This Act may be called.
There are 23 chapters and Sections in the Indian Patent Act Some of the important sections are discussed comprehensively in this article. According to Section 3 of IPA , an invention which is frivolous or which claims anything obviously contrary to well established natural laws, an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment, 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, the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, the machine or apparatus unless such known process results in a new product or employs at least one new reactant are not patentable . Also a method of agriculture or horticulture, a mathematical or business method or a computer programme per se or algorithms, a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions, a mere scheme or rule or method of performing mental act or method of playing game, a presentation of information, topography of integrated circuits, an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components are not treated as inventions according to Section 3. Section 3 b disallows the patents for gambling machines and for devices for house-breaking.
Krishna Tulasi and B. College of Pharmacy, M. R Nagar, Fasalwadi, Sangareddy , India. Creations of brain are called intellect. Since these creations have good commercial value, are called as property.
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