Evolution of Patents From The Pre-British Era

Patent is an essential branch under an umbrella of Intellectual Property that deals with the protection of Inventions and innovations. It is an authority or license given by the Government conferring a right or title of monopoly to the inventor for a set period of time, with an exclusive right to exclude others from making, using, selling or importing the patented product or process for producing that product for any purposes without his consent.

According to Section 2(1) (J) of Patent Act 1970 an invention means a new product or process involving an inventive step and capable of industrial application. But, the point to be noted is that all inventions are patentable innovations, but all the innovations are not patentable inventions.

India, since time immemorial has been the forerunner in the fields of science, technology, medicine, dance, arts, literature etc. The ancient books and manuscripts like Vedas and Upanishads not only provide spiritual solace but also serve as a source for the evolution of all science and art. These various sciences have developed over a period of hundreds of years while the other civilizations in the world were in their rudimentary stages. Although India had been the hub of human wonders in ancient days, today our technology in most of the fields cannot be compared itself with the best in the world. The ancient knowledge of our ancestors have not been completely inherited by the future generations. Whatsoever scientific and technical knowledge were possessed were occupied and utilized by the western countries. Our ancestors, while being generous in propagating such vital information for the benefit of the mankind, did not have the forethought of protecting their inventions and innovations, which in the course of years proved to be fatal.

Knowledge is considered to be the product of individual creativity today. But earlier, knowledge was considered as the most precious gift, which knew no limitations of space or time, was freely given to the aspirants from the guru and this tradition was known as Guru Parampara. The guru got the knowledge from his guru and after adding his expertise and experience passed it on to his learners. This was true in respect to all ancient traditional knowledge.

“Let noble thoughts come to us from everywhere let all beings live happily, free from the fear of death and diseases”

and many more such ideals were the guidelines for the scientists who worked for the betterment of every living creature, every day. They were so selfless that thinking of petty personal benefits was a mater unknown, unheard and unthinkable for them.

Indian society has inherited a rule that each individual owed at least three debts or rhinas. One was to his parents, second was to his guru and the third is towards motherland or society for all that has been bestowed upon him. When a person is repaying his debt by contributing something to the society what can he expect in return except the feeling of intense fulfillment.

Hence, in ancient India the invention of anything and everything useful to the society was offered as a salutation to the god, guru, parents or the ruler and in turn blessed with further progress of the ruler, who would award him with material benefits or title and engrave the details of such invention either on stone or other inscriptions for the benefit of the whole society.

But gradually the situation changed and the idea of protecting knowledge emerged in India as a result of influence of the British. Therefore India’s patent system is drawn from the British system. Unlike Great Britain where the concept of patent originated from the exercise of the royal prerogative to grant monopolies, in India, a patent for invention has always been the sole creation of statutes of Indian legislature.The laws relating to Patents rights protection in India have evolved drastically during the last 160 years (initially enacted in 1856).

The Act VI of 1856 on protection of inventions was based on the British Patent Law of 1852. This Act granted certain exclusive rights to inventors of new manufacturers for a period of 14 years. The Act was subsequently repealed by Act IX of 1857 since it had been enacted without the approval of the British Crown. Fresh legislation for granting ‘exclusive privileges’ was introduced in 1859 as Act XV of 1859. In 1872, the Act of 1859 was consolidated to provide protection relating to designs. It was renamed as “The Patterns and Designs Protection Act” under Act XIII of 1872. The Act of 1872 was further amended in 1883 with some minor amendments. This Act remained in force for about 30 years without any change or modifications.

The Indian Patents and Designs Act, 1911, (Act II of 1911) replaced all the previous Acts. This Act brought patent administration under the management of Controller of Patents for the first time. This Act was further amended in 1920 to enter into reciprocal arrangements with UK and other countries for securing priority. In 1930, further amendments were made to incorporate, inter-alia, provisions relating to grant of secret patents, patent of addition, use of invention by Government, powers of the Controller to rectify register of patent and increase of term of the patent from 14 years to 16 years.

The Act brought a new provision so that an inventor can file provisional specification and complete specification within a period of nine months. This amendment was made in 1945 and it had given a new look to the patent Act. But the amendments made in the Act of 1911 could not resolve all the emerging issues in regard to the patenting. In 1949, the Government of India formed a committee under Justice (Dr) Bakshi Tek Chand to examine the existing patent laws of the country.
As a result of the recommendations of the Tek Chand Committee, the Patents and Designs Act of 1911 was amended in 1950 (Act XXXII). Justice N Rajagopala Ayyangar Committee was appointed by the Government to examine the question of revision of the Patent Law in 1957. As per the recommendations of this committee, the first Patent Act of Independent India came into existence in 1970. It was truly a national Patent Act wherein provisions were made to favor the domestic industry to a great extent. Indeed, the pharma sector was given high priority under the Act so as to make the essential medicines available at the affordable price. This resulted into the sharp fall in investment and patenting of both foreign firms and individual patentees in the country.

The Act has so far seen three major amendments, all of which were done as a part of the exercise to conform the Indian Patent Laws to the obligations under the TRIPs Agreement of the WTO. India was obliged to introduce product patents for pharmaceutical substances under the TRIPs Agreement. The TRIPs Agreement however, provided for a 10-year transition period for developing countries that were in the process of extending product patent protection to area of technology, not capable of protection in its territory.Certain stop-gap arrangements were introduced in the interregnum. The TRIPs Agreement required the countries under transition to provide for a means by which patent applications for pharmaceutical and agricultural chemical products can be filed.

This system of entertaining applications was based on the patentability criteria as laid down in the TRIPs Agreement and as applied on the date of filing in India, or where priority is available and is claimed, on the priority date of the application. The applications filed through the mail-box were to be processed by the Indian Patent Office only after the expiry of the ten year transition period. The TRIPs Agreement also provided for another interim arrangement consequent to the application of product patents for pharmaceuticals made through the ‘mail-box’ where an application for product patent has been made. The protection available under EMR was very similar to the one extended by a product patent. India was expected to have the mail-box system and EMR in place from the date, on which the TRIPs Agreement came into force.

Thus, the effect of the ten year transition period which exempted India from implementing product patents was nullified by the introduction of EMR. The Patents (Amendment) Act 1999 introduced provisions for ‘mail-box’ applications and EMR with retrospective effect from 1st, January, 1995. The Patents (Amendment) Act, 2002, passed on 25th June 2002, was a further step in conforming Indian patent laws to the obligations under the TRIPs Agreement. The Patents (Amendment) Act 2002 and the Patents Rules 2003 came into force on 20th May 2003.

The changes introduced by this amendment Act included:

• A uniform patent term of 20 years from the date of application;
• Provision for third parties to obtain marketing approval from regulatory authorities within three years before the expiration of the patent term;
• Provision for increased penalty for unauthorized claim of patent right and for refusal or failure to supply information;
• Provision for filing international application under PCT simultaneously with an application filed before the Controller in India.

The Patents Bill 2003 was introduced to bring about the third conforming amendment to the Patents Act. As the deadline for complying with the TRIPs Agreement was nearing, the Government introduced the Patents Ordinance 2004 on 26th December, 2004. The Ordinance was by and large, an improvement on the Patents Amendment Bill 2003. The Ordinance was succeeded by the Patents Amendment Bill 2005 which was introduced in the Lok Sabha and the Rajya Sabha on 22nd March 2005 and 23rd March 2005 respectively.

The Amendment Act of 2005 came into force with retrospective effect from 1st January, 2005.

The salient features of the Amendment included:

• The omission of section 5 and the consequent introduction of product patents for pharmaceutical substances;
• Provision for publication of the application of patent introduced;
• Opposition can be made at the time of publication on the same ground on which the grant of patent can be opposed;
• Opposition can be made within 12 months after the grant of patent;
• Prior written permission of the Controller required for a resident of India to apply for any patent in a foreign country;
• Though registration of assignments is still required, the assignment of patent shall be valid even if it is not registered;
• Provision for sealing of patent has been omitted.

Amendments were carried on by India to survive the onslaught of global competition and in order to re-enforce the country’s inventiveness as well as strengthen and efficiently use the patent system for the progress of the society.