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RESEARCH AND COMPARE THE PATENT LAWS OF INDIA TO EUROPEAN COUNTRIES
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RESEARCH AND COMPARE THE PATENT LAWS OF INDIA
TO EUROPEAN COUNTRIES
AUTHORED BY - ANUSHKA SINGH CHOUHAN
Abstract
Patent now a days plays a very essential
role in security of drug product and process innovated
by the patentee. A patent is
a monopoly right granted to an inventor, giving the inventor the right for a limited period of time to prevent
others from making, using or selling his invention without due permission from the inventor. The patent
system plays an important role in stimulating the economy and advancing the quality of life. It serves as an
incentive for innovation by giving inventors an exclusive right to their inventions for
a limited period of time.
It also increases and hastens the publication of useful knowledge
by requiring inventors to disclose their invention to the public.
Patents are particularly important in the pharmaceutical and biotechnology
industries because they provide a mechanism by which the extremely high product development costs may be recouped. The
legal requirements for obtaining a patent are discussed. The process of examining an application for a patent
is also briefly described. The objective of this work includes comparison of patents
between India, US and Europe. As per the data received by an official site, the number
of applications filled
and granted in US is more, compared
to India and European countries. Both these laws are very distinct.
There
are many similarities but differences also exist. The procedures of obtaining a
patent are almost the same in all
major patent systems; the difference comes with respect to patentability of inventions. US patent laws allow the grant
of patent to anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter,
or any new and useful improvement thereof.
On the other hand, the Indian patent
and EU Patent statute quite
elaborately describes what inventions are not patentable under different sections
of the Patent Act.
Keywords: Patent, Utility, Description, Patent
process, India, United State,
European Countries.
Introduction
·
An innovation's patent is an exclusive right given by
the government to the inventor to prevent
others from using, producing, and selling the invention for a set amount of
time. Also, a patent is allowed for
enhancements to their prior invention. By giving inventors exclusive
rights over their innovations, the major
goal of patent law is to motivate
them to make greater contributions to their fields.
Modern terminology typically
refers to the patent as the right given to an inventor for
his invention of any novel, practical, non- obvious procedure, and machine, manufactured good or material
composition. The Latin word "patere," which meaning "to lay open" or "to
make available for public examination," is where the word "patent" first appeared.1
Three fundamental tests exist for any invention tobe patentable.
·
Firstly, the invention must be novel, meaning thereby
that the Invention must not be in existence.
·
Secondly, the Invention must be non- obvious, i.e. the
Invention must be a significant improvement
to the previous one; mere change in technology will not give the right of the patent
to the inventor.
·
Thirdly, the invention must be useful in a bonafide
manner, meaning thereby that the Invention
must not be solely used in any illegal work and is useful to the world
in a bonafide manner.
·
A patent is an exclusive right awarded for an
invention, which is typically a product or technique
that provides a new way of doing something or a new technical solution to a problem. The objective of enacting patent
law is to encourage innovators to make greater
contributions to their respective fields by granting them exclusive
rights to their ideas. In modern
parlance, a patent is a privilege awarded to an inventor for his invention of
any new, useful, non-obvious
procedure, machine, the manufactured object, or combination of substances.
·
Over the years,
patent laws have become a common practice
all over the world as it
protects the authenticity and exclusivity of the product. In this article, the author aims to state
and compare the patent laws of some major countries
and unions with India.
·
Only novel and practical inventions are eligible for patent protection under Indian law.
·
The machine, item, or
substance that a manufacturer produces, or the method used to
make an item, must
be related to the invention. A patent may also be obtained for an invention of
a product or a manufacturingprocess.
When it comes to drugs, medicines, and some kinds of chemicals, the substance
itself does not receive
a patent, even if
it is novel, but the
manufacturing technique is.
The first
inventor, or the person who has acquired
title from him, must make the application for a patent,
and the right to do so must be assignable.
Intellectual Property
broadly divided into two categories-
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INTERLLECTUAL PROPERTY
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Geographical Indication
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Industrial Designs
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Trademarks
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Patents
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Copyright & Related rights
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Industrial Property
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Patentable invention
According to the Indian Patent Act, a patentable invention is defined as
a new product or process involving an inventive step and capable of industrial application.
Ø Invention must be ‘new’
Ø Invention must involve an ‘inventive step’
Ø Invention must be
having ‘industrial application’
Invention not patentable2
The main categories, which do not qualify for patentability under the act, are:
·
An invention, whose use could be
contrary to the public order or morality or which
causes serious prejudice to
human, animal or plant life or health or to the environment. For example,
a new type of gambling machine.3
·
Inventions relating to atomic energy.
This is so because the central government has the sole responsibility
for the development of atomic energy and for obvious reasons will not like its programmers
to be hampered by patent claims.
·
An invention which is frivolous or which claims
anything obviously contrary to well established natural
laws. For example,
an invention that claims a perpetual motion
machine will not be
patentable because the claim would be contrary to well-established laws of nature.
·
The mere discovery of a scientific principle or the
formulation of an abstract theory. For example,
a discovery merely unveils a hidden thing; it does not involve an act that
makes it useful; it is therefore not an invention and hence not patentable. Similar
reasoning applies to the formulation of an abstract theory.
·
Discovery of any living
thing or non-living substances or objects
occurring in nature
Register of patents: The patent office and its branch offices shall maintain the
register of patents. The patent number,
the names and addresses
of the patentee, notifications of assignment,
renewals, information regarding patent ownership, etc. are all included in the register
of patents.
Renewal fee: Every year, renewal costs
are due. The first renewal fee is due before the patent's second anniversary and is payable for the
third year of the patient's life. Renewal costs may be accrued and paid immediately after the patent is sealed or
within three months of its entry in the register
of patents if it hasn't been issued within that time frame. The date of renewal fee payment
is calculated from the date of the patent. Grace periods of six months are offered with an extension cost. If the Original patent is cancelled and the
Patent of Addition is
2 Indian Patents
Act, 1970.
3 Indian Patents
Act, 1970.
converted into an independent Patent, then Renewal
Fees are due for the Remainder of the Term of the Independent
Patent. No renewal fees are payable during
the pendency of the application for a patent;
renewal fees that become overdue during pendency are payable upon sealing
within three months of recorded in the patent
register.4
Duration:
A patent lasts for 20 years from
the date of filing the complete specification.
Restoration: A patent restoration
request must be submitted within a year of the expiration date if it was caused by the failure
to pay renewal costs. The one-year window
for requesting restoration starts on the date of
recorded if a late annuity
is not paid within the
extension period.
Infringement: Infringement includes
removing key components of the patented invention, using claimed characteristics, replicating patented materials,
establishing mechanical equivalents, and taking
a portion of the invention while the patent is still in effect. Usage by or for
the government is not considered an infringement. Such use shall be subject
to payment on conditions to be agreed
upon prior to or following
use. Use for research purposes,
use onforeign boats, and accidental
or temporary use do not constitute infringement.5
Appeal: Appeal lies in the high Court.
Appeal must be lodged within three months from the decision of the controller.
Right to surrender: By sending
notification to the controller in the appropriate manner, the patentee
has the right to renounce
the patent at any moment.
The controller will publiclyannounce the offer of surrender before
he or she accepts it, giving interested parties a chance to reject it
Opposition: Notice of opposition must
be filed within four months of notification in the Gazette. Extension of one month is available, but
must be applied for before expiry of initial four-month period
4 Comparision of Patenting System in India,
Us and European Countries by Nikitha K. Heble,
N. Vishal Gupta
5 Comparision of Patenting System in India,
Us and European Countries by Nikitha K. Heble,
N. Vishal Gupta
Limitations on Patentee’s Rights6:
ü There are certain limitations on the rights
of the patentee.
ü Any patented
product or process or a product
made using patented
process may be used by or on behalf of the government for its own use
only.
ü An invention is said to be used for the purposes of government if it is made, used, exercised or vended for the purposes of the
central government, state government or a government undertaking;
ü A patented
article or article made by use of patented process may be used by any person for experiment,
research or for imparting instructions to pupils and
ü In case of a patent in respect of any medicine or drug, the medicine or drug may be imported
by the government for its own use or for distribution in any dispensary,
hospital or other medical institution maintained by or on
behalf of the government.
Transfer of Patent7
1.
Whenever
a patentee transfers a patent that is registered in his name after giving up ownership
of it, the transferee is required to apply to the department for the removal
of the transferor's name
from the patent register and subsequent registration of his own name.8
2.
If
someone submits an application in accordance with subsection (1), the
department must notify the patentee,
whose name is listed in the register, and instruct him to file a complaint with the department within
15 days if he objects to the transfer of his patent in files complaints in accordance with this deadline
and it becomes essential to ascertain which of the two parties has title to
the patent. If no objection is lodged within this window of time, the
transfer will take place as specified
in the application.
3.
The
person submitting an application for a patent transfer in accordance with the provisions of this section
shall submit the required
payment to the department along with the application.
6 Indian Patent Act, 1970
8 Indian Patent Act, 1970
Patent Application
Deemed To Be Withdraw
Procedure for obtaining patent
in India9
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Patent Application
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Deemed To Be Withdraw
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Provisional Application
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Complete Specification
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Request for
Examination
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Order for
Refusal
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Appeal against the
Order
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Reply for the
Objection in Hearing
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Deemed To Be Withdraw
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Publication of
Grant Patent Number Is Allotted
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Order for
Grant
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Hearing
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Response to FER
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Publication of Application
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No Response to
FER
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9 Indian Patent Act, 1970
PATENT SYSTEM IN EUROPEAN COUNTRIES
Patentable invention
Only fresh, innovative, and industrially useful inventions are eligible
for patent protection under the rules
of the European Patent Convention. An invention satisfies these requirements if it can be made or used industrially, was not previously known to the
public in any form prior to the priority date or the date of filing,
and was not obvious to a person
of ordinary ability
in the art.
Invention not patentable
Discoveries,
mathematical methods, computer programs and business methods as such are not regarded
as inventions. Surgical
and therapeutic procedures along with diagnostic methods practiced on
the human or animal body are excluded from patentability. New plant or animal varieties
are completely excluded
from patentability. The European patent
convention does not, of course, recognize inventions whose
commercial exploitation would be contrary to "order public" or ethical principles, such as means of
cloning human life or the use of human embryos for commercial and
industrial purposes.10
The grant procedure
1.
Filing a
European patent application: Applications for European patents
may be submitted at the central
industrial property office of any contracting state, as well as at the European Patent Offices in Munich, The Hague, and Berlin.
2.
The
language of a patent application: Any language may be used to submit
a European patent application, but only one of the three official languages—English, French, or German—will be used for processing. It must therefore
be translated into English, Français, or German within two months if it was submitted in any other language.11
10 Comparision of Patenting System in India, Us and European Countries by Nikitha
K. Heble, N. Vishal
Gupta
3.
Components
of a European patent application: European patent applications
consist of four or five parts:
i.
Request for grant: Requests should be made using the
official "Request for grant" form,
which is obtainable free of charge, accompanied by explanatory notes, from the European patent
office and the patent offices
of the contracting states.
ii.
Description of the invention: The description must
describe the invention clearly and completely enough for a person
skilled in the art to be
able to carry it out.
iii.
Claims: The claims must define the subject-matter for
which patent protection is sought in
terms of its technical features. They must be clear and concise and be supported
by the description.12
iv.
Drawings: The application may also contain drawings. These form a useful addition to the description when they illustrate the features of the invention.
v.
Abstract: The abstract is purely for technical
information and is not used to assess the
patentability of the invention.13
4.
Filing and formalities examination: The
examination on filing is the first phase in the European patent award
process. This entails
determining if all required data and supporting materials have been submitted so that the application can receive a filing date. An indication that a European patent is
sought, the applicant's information, and a description of or a reference to a previously submitted application is all
necessary. In the event that claims
are made, they must be made within two months. This is followed by anevaluation of the application's
"formalities," which includes the format and substance of the patent application, the translation, the designation of the inventor,
the appointment of a professional representative, and the payment of any required costs.14
5.
Search: A European
search report is created concurrently with the formalities review, outlining
all the office's documents that are deemed pertinent for determining uniqueness and innovative step. In
addition to the description and any drawings, the search report is based on the patent claims.
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14 Comparision of
Patenting System in India, Us and European Countries by Nikitha K.
Heble, N. Vishal Gupta
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Page | 13
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The
search report is submitted to the
applicant as soon as it has been created, along
with a copy of any mentioned papers
and a preliminary assessment of whether the claimed invention and the
application comply with the provisions of the
European Patent Convention.15
1.
Publication
of the application: Normal publication of the application and search
report occurs 18 months following the
filing date or priority date. After hearing about the release of the search report, applicants have six
months to determine whether or not to proceed
with their application by seeking a substantive examination.
Alternatively, unlesshe has waived
this invitation, an applicant who has already sought examination will be
invited to confirm whether the
application should move forward. A European patent application grants the innovation in the states
specified in the application as published provisional protection as of the date of publication. Yet, it might
be required by national law to submit
a translation of the claims to the relevant patent office and have this
translation made public.16
2.
Substantive examination: The European Patent
Office investigates whether
the European Patent Application and the invention to which it relates meet the requirements of the European Patent Convention, and in particular whether the invention is patentable, after the request for examination has been made, in light of the search report and taking the applicant's response into account. Nevertheless, the award won't be given out until the claims have been translated into theothertwo official languages and the necessaryfees have been paid.
3.
The grant of a patent: A "bundle" of distinct country
patents make up the issued European patent. The patent must be recognized in
numerous contracting states for it to keep its
deterrent impact and be upheld against infringers. This means that, when
necessary, the patent holder must
submit to the national patent office a translation of the specification, or at the very least, the claims, into the
official language of that state. Moreover, fees could have a due date. National law governs these matters.17
15 Comparision of Patenting System
in India, Us and European
Countries by Nikitha K. Heble, N. Vishal Gupta
16 Comparision of Patenting System in India,
Us and European Countries by Nikitha K. Heble,
N. Vishal Gupta
17 Comparision of Patenting System in India,
Us and European Countries by Nikitha K. Heble,
N. Vishal Gupta
4.
Opposition: After the European patent has been granted, it may be opposed
by third parties
– Who will usually be the applicant’s competitors – if they believe that
it should not have been granted (for
example, because the invention lacks novelty or does not involve an inventive step). Notice of opposition must
be filed within nine months of grant being mentioned in the European
patent bulletin.18 The examination of oppositions is handled by the European patent office’s
opposition divisions, which are usually also made up of three examiners. After publication of an
application, third parties may present observations on the patentability of the invention to which the application or
patent relates, as long as proceedings are pending before
the EPO.
5.
Revocation
or limitation: The patent proprietor may request limitation or
revocation of the patent at any time after it has been granted.
6.
Appeal: It is
possible to appeal decisions made by the European Patent Office onsubjects like application rejection or opposition
issues. The independent boards of appeal of the EPO decide appeals.19
INVENTION
Flow chart for EU patenting process
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INVENTION
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Examination on
filing and
as to formal requirements
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Search relating to the state-of-the-art
Search report and non-binding opinion on patentability
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European patent application Request (obligatory), preferably on EPO Form 1001 • Description (obligatory) • Claims
•
Drawings (if any) • Abstract Filing offices • EPO Berlin • EPO Munich
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Publication
of application 18 months after filing date or earliest priority date Provisional patent protection can be obtained in
all states designated. Applicants may claim
reasonable compensation from competitors who
infringe their patent
applications through imitation.
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Examination fee
Designation fee Extension fees (if applicable)
Examination of application Opportunity to amend claims and description Renewal fees for the third and subsequent
years Translation of the claims into
the official languages of the EPO and fees for grant and publication of patent
specification
Grant of patent
Publication of patent
specification Full patent protection against
infringement (unlicensed use of invention by competitors) Validation in the designated states
Opposition by third parties within 9 months from publication of the mention of
grant Patentee may limit or revoke the patent
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First to file versus
first to invent20
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INDIA
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EU
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India first to file systems, thus it does not matter who invents first; it’s the first
filer who gets the rights over the
invention.
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When two people
apply for a patent on the same
invention, the first
person to have
filed his application will get the patent (assuming the invention is patentable, of course). This holds even if the second person did in fact come up with the Invention first. The only thing that counts
is the filing
date
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Grace period
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The application for patent
should be filed
before the publication of the invention and till then it should not be disclosed or published. However, under certain conditions, there is grace period of
12 Months for filing application even after
publication.
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The grace period
is usually 6 or 12 months
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Publication of patent applications
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When the application is found to be suitable for acceptance it is published in the gazette of India. It is deemed laid
open to the public on the date of publication in the
gazette of India.
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All patent applications are published 18 months after their filing date, unless
they have been withdrawn. If the novelty search has been completed by that time, the search
report is included with the publication.
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Rights conferred by a granted patent
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A patent granted before thecommencement of this Act, shall confer onthe patentee
the exclusive right by himself,
his agents or licensees to make, use, exercise, sell or distribute the invention in India.
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The European Patent
Convention is a treaty signed
by twentyseven European countries, namely Austria, Belgium, Bulgaria,
Switzerland, Cyprus, the Czech Republic, Germany, Denmark, Estonia, Spain, Finland, France, Greece, Hungary, Ireland, Italy, Liechtenstein,
Luxembourg, Monaco, the Netherlands, Portugal, Romania, Slovenia, Sweden, Turkey and the United Kingdom. Patents under the EPC are granted by the European Patent
Office (EPO) in Munich.
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Opposition
after grant21
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At any time within four months from the date of advertisement of the acceptance of a complete specification, any person interested may give notice
to the Controller of opposition to the grant of the patent
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Within nine months after the grant of a European patent, anyone can file an opposition
with the EPO, stating why this patent
should not have been granted (of course
with arguments and evidence). The patent holder
and the opponent can then
debate with each
other. Finally, the EPO
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21 Comparision of Patenting System
in India, Us and European
Countries by Nikitha K. Heble, N. Vishal Gupta
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will take a decision based
on facts and
arguments presented by both sides.
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Inventive step
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Invention must be „new? Invention must
involve an „inventive step? Invention must
be having „industrial application?
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The two most important requirements in European patent law are that, to be patentable, an invention must
be novel and
Involve an inventive step.
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Patent offices
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Mumbai,
Chennai, New Delhi
and Kolkata
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Munich, The Hague,
Berlin, Vienna
andBrussels
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Requirements for patents22
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· Title of the Invention.
· Technical field of invention.
· Prior art
with short comings
· Problem with
the existing art.
· Proposed technical solution.
· Brief description of the accompanying drawings, if any.
· Detailed description of the invention
· Examples
· Claims.
· Appropriate fees
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· European patent application consists of a request for the grant
of a European patent,
· a description of the invention,
· one or more claims,
· Any drawings referred to in the description or claims, and an abstract.
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Restoration
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Within one year from the date on which the
Patent
ceased to have effect, make an application for the restoration of the patent.
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NA
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22 Comparision of Patenting System
in India, Us and European
Countries by Nikitha K. Heble, N. Vishal Gupta
Conclusion: Given the aforementioned
analysis, it can be inferred that while
the US and EU do not have a similar
patenting process to India, other countries do. There was, however, some distinction. In this study, it was
discovered that, with a few exceptions, the patenting process is essentially the same across all nations, including the Patent Office.
Article Information
RESEARCH AND COMPARE THE PATENT LAWS OF INDIA TO EUROPEAN COUNTRIES
Authors: ANUSHKA SINGH CHOUHAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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