PATENT- Durgashree Diwakar

PATENT
BY,
DURGASHREE.M.D
M.PHARM, PHARMACOGNOSY

INTRODUCTION
A patent is an exclusive right granted for an
invention, which is a product or a process that
provides, in general, a new way of doing
something, or offers a new technical solution to a
problem.
To get a patent, technical information about the
invention must be disclosed to the public in a
patent application.
The patent is usually referred to as the right
granted to an inventor for his Invention of any new,
useful, non-obvious process, machine, article of
manufacture, or composition of matter.

INDIAN PATENT LAWS
Patent act is a subset of the intellectual property laws and a branch which deals
with the new inventions.
Intellectual Property law deals with laws to protect and enforce rights of the
creators and owners of inventions, writing, music, designs and other works,
known as the "intellectual property."

The history of patent law in India begins with the enchantment of Indian
patents and design act 1911.
Subsequently, in 1972, current 1970 act, came into effect, amending and
consolidating the established patent legislation in India.
In India, the duration of each patent is 20 years from the date of filing the
patent application, irrespective of whether it is filed with provisional or full
specification.
According to patent act, 1970 there are two types of patents- product patent
and process patent.
The product patent is end result or output of product produced and process
patent is journey of patent being produced

INTERNATIONAL PATENT LAWS
World Intellectual Property Organization (WIPO), international organization
designed to promote the worldwide protection of both industrial property (inventions,
trademarks, and designs) and copyrighted materials (literary, musical, photographic, and
other artistic works).
The European Patent Convention (EPC) is an international treaty between European
countries.

The Patent Cooperation Treaty (PCT) is an international treaty and provides
the possibility to file one single patent application (an "international" patent
application) that has the same effect as a national patent application in more
than 120 States, instead of filing multiple national or regional patent
applications.
Only after a delay of at least 30 months, the national or regional procedures
are to be started in the desired States or regions. Within this period, the
applicant receives an official opinion regarding patentability of the invention
and has time to decide whether and in which countries respectively he wants to
enter the national or regional phase.

PROPOSED AMENDMENTS AS APPLICABLE
TO HERBAL
Traditional medical knowledge, such as the medicinal use of herbs, is often
associated with genetic resources.
Because genetic resources exist in nature and are not creations of the human
mind, they cannot be directly protected as intellectual property (IP). They are,
however, subject to access and benefit-sharing regulations under international
agreements.
Different aspects of traditional medical knowledge are under discussion in
several international forums, including WHO and the World Trade
Organization (WTO)

The World Intellectual Property Organization
(WIPO) is primarily concerned with
“protection” of traditional medical knowledge
in the IP sense – protection against
unauthorized use by third parties.
IP protection can take two forms – positive
and defensive protection:
◦ -Positive protection grants IP rights over the
subject matter of traditional medical
knowledge.
◦ -Defensive protection does not grant IP
rights over traditional medical knowledge
but aims to stop such rights from being
acquired by third parties.

Defensive measures undertaken by WIPO include changes to the Patent
Cooperation Treaty’s Minimum Documentation and the International Patent
Classification so as to improve searches for “prior art” and prevent patents
from being granted in error.
In 2003, it was agreed that certain traditional knowledge documentation, such
as the Indian Journal of Traditional Knowledge and the Korean Journal of
Traditional Knowledge, should be included in the Patent Cooperation Treaty’s
Minimum Documentation.
 In 2006, the International Patent Classification was amended to include a
traditional knowledge category, which covers traditional herbal medicines.

A geographical indication is another sort of IP right that can help to identify
the source of goods.
Geographical indications identify products as having characteristics associated
with their place of origin.
The way in which geographical indications are protected varies by country
and may require registration or use in commerce.
As with trademarks, geographical indications can be used only for the
protection of products based on traditional medical knowledge, not the
knowledge itself.
GEOGRAPHICAL INDICATION

 The copyright gives the owner the exclusive
right to protect his imaginary and substantial
interests in his artistically creative work.
 In a digitalized and networked information
society copyright defines general conditions for
the production, monopolization, distribution and
use of particular cultural information. In this
spirit copyright may be understood as a
protective system for qualified human
communication.
COPYRIGHT

 The foremost consideration is to determine whether the invention relates to a
patentable subject-matter.
 Sections 3 and 4 of the Patents Act list out non-patentable subject matter.
 As long as the invention does not fall under any provision of Sections 3 or 4,
it means it has patentable subject matter (subject to the satisfaction of the
other criteria).
PATENTABLE SUBJECT MATTER

NOVELTY
 Novelty is an important criterion in determining the patentability of an invention.
 Novelty or new invention is defined under Section 2(l) of the Patents Act as “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”.
 Simply put, the novelty requirement basically states that an invention should never
have been published in the public domain. It must be new with no same or similar
prior arts.

NON-OBVIOUSNESS OR INVENTIVE STEPS
 Inventive step is defined under Section 2(ja) of the Patents Act as “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”.
 This means that the invention must not be obvious to a person skilled in the same
field as the invention relates to.

UTILITY
 Industrial applicability is defined in Section 2ac of the patent act as “the
invention is capable of being made or used in an industry”. This basically
means that the Invention cannot exist in the abstract. It must be capable of
being applied in any industry, which means that it must have practical utility in
respect of patent.

ENABLEMENT AND BEST MODE
 The enablement requirement requires the inventor to describe his or her
invention in a manner that would allow others in the industry to make and use
the invention.
 The best mode requirement requires the inventor to disclose his or her
preferred way of carrying out the invention at the time the patent application
is filled.

Step 1: Write about inventions (idea or concept) with each and every detail.
Step 2: It must involve a diagram, drawing and sketch explains the Invention
Step 3: To check whether the Invention is patentable subject or not.
Step 4: Patent Discovery
Step 5: File Patent Application
Step 6: Publication of the application
Step 7: Request for Examination
Step 8: Answer the objections
Step 9: Clearance of objections
Step 10: Once all patent requirements are met, the application will be placed for the
grant. The grant of a patent is notified in the Patent Journal, which is published
periodically.
PROCEDURE FOR FILING PATENT IN INDIA

 Where an application for a patent has been found to be in order for grant of the
patent and either—
(a) the application has not been refused by the Controller by virtue of any power
vested in him by this Act; or
(b) the application has not been found to be in contravention of any of the
provisions of this Act, the patent shall be granted as expeditiously as possible to the
applicant or, in the case of a joint application, to the applicants jointly, with the seal
of the patent office and the date on which the patent is granted shall be entered in
the register.
GRANT OF PATENT

 Right to exploit patent: A patentee has the exclusive right to make use,
exercise, sell or distribute the patented article or substance in India,
 Right to grant license: The patentee has the discretion to transfer rights or
grant licenses or enter into some other arrangement for a consideration.
 Right to Surrender: A patentee has the right to surrender his patent, but
before accepting the offer of surrender, a notice of surrender is given to
persons whose name is entered in the register.
 Right to sue for infringement: The patentee has a right to institute
proceedings for infringement of the patent in a District Court having
jurisdiction to try the suit.
RIGHT FOR PATENTS

CASES OF PATENT
1.TURMERIC PATENT

3.NOVARTIS AND CIPLA, 2015
Novartis (Plaintiff) sued Cipla (Defendant) for infringing patents covering Onbrez
(Indacaterol-drug used to treat chronic obstructive pulmonary disease) and sought
damages.
In 2014, the Defendant launched a generic version of Onbrez and in the process
petitioned to have the Plaintiff’s patents revoked. It contended that the disease has
reached an ‘epidemic’ stage and the monopoly of the Plaintiff was limiting the
extent of the drug.
Defendant contended that the Plaintiff was not manufacturing the drug locally and
imported only limited quantities through a licensee.
Plaintiff then filed a case before the Delhi HC claiming patent infringement and
damages.
Delhi High court barred the Defendant from making or selling generic copy of the
Plaintiffs drug by granting temporary injunction to the Plaintiff.

OPPOSITION OF PATENT
An application for a patent may be opposed by either a prior grant or
a subsequent grant by any person on the grounds specified in s 25 (1) and
25 (2) of the former Act. No other grounds stated in the Act can be taken
to oppose the patent.

REVOCATION OF PATENT
 Patent revocation means cancellation of the rights granted to a person by
the grant of a patent.
 A patent can be revoked on petition of any person interested or of the
Central Government or on a counter claim in a suit for infringement of
the patent by the High Court.

PATENT SEARCH AND LITERATURE
 Also known as Novelty Search Done to identify patents and non-patent
literature Recommended to be done before writing and filing the patent
specification, and therefore, sometimes called a pre-application search.

CONTROLLERS OF PATENTS
 The Controller of Patents is considered as
the principal officer responsible for
administering the patent system in India.
 The Controller is regarded as the overall
supervisor of the four Patent Offices in
Chennai, Delhi, Mumbai and Kolkata.
 Officially, the patent has its head office in
Kolkata (Calcutta).
 Patents granted under the Patents Act and
other officers of the Patent Office discharge
their functions under the direction or
regulation of the Controller.

PATENT- Durgashree Diwakar

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