INTRODUCTION, NEEDS, DEFINITION AND

PATENTABLE INVENTIONS

by
Prof.(Dr.) Naresh Kumar Vats

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB
 INTRODUCTION
• A patent is a legal monopoly granted by a government in
return for public disclosure of an invention. A granted patent
gives the proprietor the right to prevent others using the
invention in the territory to which the patent applies. A patent
does not, however, give a positive right to use an
invention. There may be earlier patents for other inventions
that an inventor may need to license to exploit his own
invention.
 NEEDS OF PATENT
• A patent gives you certain legal rights, which can deter rival businesses from
using or copying your products or inventions.
• Whether you are a private inventor working from your home, a full-time
entrepreneur, or a principal in a large corporate entity developing or refining
products or the means of producing them, protecting innovation is an
integral part of modern enterprise.
• There are many good reasons to apply for a patent including:
• Legal right of ownership of the invention
• Often required when applying for investment
• Protection of your product from the time the patent application is filed
• Enhancing the value of your business with a patent. An invention must be new; in
other words, it must not have been made public before your patent application is
filed. It must “involve an inventive step” which means it cannot be obvious in the
light of what is already known. It must be capable of industrial application.
 THE INDIAN PATENT ACT 1970
• INTELLECTUAL PROPERTY• IP is the product or creation of the
mind. It is different from other properties in term that it is
“intangible”. Hence, it needs some different way for its
protection. INTELLECTUAL PROPERTY RIGHTS is the body of law
developed to protect the creative people who have disclosed
their invention for the benefit of mankind. Patent protects
invention from being copied or imitated without their consent.
 Section 2 DEFINITION
• (aba) "Budapest Treaty" means the Budapest Treaty on the International
Recognition of the Deposit of Micro-organisms for the purposes of Patent
Procedure done at Budapest on 28th day of April, 1977, as amended and
modified from time to
• (d) "convention country" means a country or a country which is member of
a group of countries or a union of countries or an Intergovernmental
organization referred to as a convention country in section 133;
• (f) “exclusive licence” means a licence from a patentee which confers on
the licensee, on the licensee and persons authorised by him, to the
exclusion of all other persons (including the patentee), any right in respect
of the patented invention, and exclusive licensee shall be construed
accordingly.
• (ia) "international application" means an application for patent made in
accordance with the Patent Cooperation Treaty;
 Section 2: DEFINITION
• (j)"invention" means a new product or process involving an
inventive step and capable of industrial application;
• (ja) "inventive step" means a feature of an invention that involves
technical advance as compared to the existing knowledge or having
economic significance or both and that makes the invention not
obvious to a person skilled in the art;
• (l) "new invention" means any invention or technology which has
not been anticipated by publication in any document or used in the
country or elsewhere in the world before the date of filing of
patent application with complete specification, i.e., the subject
matter has not fallen in public domain or that it does not form part
of the state of the art;
 SALIENT FEATURE OF A PATENT
Imperial Chemical Industries v. Controller General, Patent, Cal HC
held-
 The patent must be in respect of an Invention and not a discovery
 In respect of single invention there must be single patent
 Patent may be in respect of substance or in respect of process
 But it is not possible to bifurcate a patent and state that one relates
to substance and the other to the process
 In order to have a complete patent, the specifications and the
claims must be clearly and distinctly mentioned.
 Patent is the claim, and claims alone which constitute the patent.
 WHAT CAN BE PATENTED
• As per the Patent Act, for an invention to be patentable, the
invention must be a new product or process, involving an inventive
step and capable of being made or used in an industry. It means
the invention to be patentable should be technical in nature and
should meet the following criteria –
• Novelty : The matter disclosed in the specification is not published
in India or elsewhere before the date of filing of the patent
application in India.
• Inventive Step: The invention is not obvious to a person skilled in
the art in the light of the prior publication/knowledge/ document.
• Industrially applicable: Invention should possess utility, so that it
can be made or used in an industry.
 WHAT CAN BE PATENTED
• A patent can be obtained only for an invention. TRIPS agreement requires
to make patent available for any inventions, whether products or
processes, in all fields of technology without discrimination, subject to the
normal tests of novelty, inventivness and industrial applicability.
• An invention for which patent is claimed may be a product or an article or
a process. In case of an article the patent is in the end product(i.e. Fan) or
in case of process the patent does not lie in the end product but only in the
process (e.g. mix of Cokacola) by which it is arrived at.
• Patent Law - Salient Features• Both product and process patent provided
Term of patent – 20 years, Examination on request-Both pre-grant and
post-grant opposition• Fast track mechanism for disposal of appeals•
Provision for protection of bio-diversity and traditional knowledge•
Publication of applications after 18 months with facility for early
publication.