In this article we will discuss about:- 1. History of Patents 2. Components of a Patent 3. Patentable Inventions 4. Procedure 5. Advantages and Disadvantages.
- History of Patents
- Components of a Patent
- Patentable Inventions
- Procedure for Patent Application
- Advantages and Disadvantages of Patent System
1. History of Patents:
Inventors have been filing applications for biotechnological patents for over a hundred years. On 29 July 1873, microbiologist Louis Pasteur patented his improved yeast- making method at the French Patent Office. Commercial firms and companies also sought to patent biotechnological processes, with BASF patenting alizarin (a red dye which was used in textile manufacturing) in 1869.
In recent years, researchers have succeeded in better understanding the functioning of the human body and its immune system. Biotechnology has already provided life-saving medicines such as human insulin, erythroprotein, etc., and it appears to promise cures for conditions currently regarded as untreatable.
In agriculture, biotechnology is used to modify the physiology of plants with a view to introducing specific desirable features, such as resistance to disease and herbicides, or achieving higher yields.
Patents cover the ideas themselves, not just an idea’s expression. Patents can be methods, devices, new ways, new uses and new applications. The patent is not a right to use or make the patented idea. It is a right to exclude others from making, using, or selling the patented idea.
Patents are often scientific and technical innovations, such as processes for processing information more quickly. Ideas that are useful and new (i.e., no one has done it before) are made patented. Thus they can be incremental innovations.
2. Components of a Patent:
A patent has three following parts GRANT, SPECIFICATION of the idea, and the CLAIMS. The grant is filed at the patent office it is not published. It is a signed document which is actually the agreement that permits the patent right to the inventor. The specification of the idea includes the methods of invention. It is published as a single document and made public with a minimum charge from the patent office. The claim defines the scope of invention to be protected by the patent so that the others may not use it. It is a published document.
The patent rights can be enforced only after securing the patent. Patent restricts others to make, use, and offer for sale, sale or import the patented product. Patent is granted for both a product and a process. Patent right locks the functionality aspect and restricts the rights to the patent owner. Patent is a time limited monopoly which is granted from the date of the first filing for twenty years.
The patent application could be either provisional or complete. The inventors prefer to file the provisional application at the concept stage of the invention when they feel confident to file the complete application within twelve months-time from the date of the provisional application it is done, so as to exploit the right to propriety. The difference between the provisional and the complete application is that the provisional application contains only the outline of the invention and thus a tentative domain of the invention is described.
3. Patentable Inventions:
1. Methods or Processes:
It is a new and non-obvious method of using a known compound. Examples are the biological processes which yield useful proteins, enzymes, vaccines, biochemicals, secondary metabolites, etc.
Compositional formula of several beneficial products such as pharmaceuticals and reagents.
The products may be any new chemicals such as pesticides, additives, herbicides, insecticides, fungicides, genes including modified genes, expression vectors, probes, modified proteins or the GMOs.
4. New Uses:
New uses for a previously known compound. Applications which are completely new such as exploitation of microbes for the production of antibiotics and other drugs, etc.
5. New Methods of Treatment or Diagnosis:
New treatment or diagnosis methods applicable for instruments, industrial products such as dyes, flavour chemicals, plants, animals, etc.
4. Procedure for Patent Application:
The application process is the same as that of any other patent applications. Applicants may have to make a cell or seed deposit with a culture collection before filing an application. The Patent Act gives biotechnology patents a maximum of 20 years from the filing date (applications for patent filed before October 1, 1989 had a term of 17 years from the date of its issue). Patent term extensions are not available in India.
Patent Rights in India:
The Constitution of India starts with ‘We the People of India…’ wordings and declares herself a Socialist Republic in the preamble itself. The Supreme Court of India in a case declared that
Constitution is not to be construed as a mere law, but as the machinery by which laws are made. Though the patent law was framed and repeatedly amended in compliance with India’s commitment to various international treaties, conventions and agreement, none of IP laws is above the Constitution of India.
As a leader of the third world countries India has extended social responsibility towards their welfare. This responsibility is also reflected in the Patent Act. India is a signatory country to the Paris Convention and the WTO. The foreigners draw right to file patent applications in the foreign countries under the provisions of the Paris Convention and the TRIPS Agreement.
The foreign applicants have equal rights before the patent law of India and there is no discrimination based on nationality as agreed by India to the above-stated international instruments. The patent requires to be renewed each year by paying the renewal fee. In absence of non-renewal of patent, the rights are lapsed. The applicant can file for renewal of the lapsed patent within eighteen months from the date on which the patent has ceased to have effect. There is no right during the suspension of patent due to non-renewal.
5. Advantages and Disadvantages of Patent System:
Advantages of Patent System:
1. The patent is limited for a particular period only therefore the patent holder retains an absolute monopoly on product or process for the period of patent.
2. Once the administration of patent has been obtained, it becomes very easy to maintain and follow it.
3. Misuse of the things which have been covered under the patent can be avoided.
Disadvantages of Patent System:
1. After being publicly declared, the information of the product is known to the competitors and it stands valuable to them after its expiry.
2. Any litigation related to patented product or process is highly expensive.
3. The information related to patent but which is not covered under patent can be misused.
Genetically modified plants and animals are not patentable in India. Although plant varieties produced through traditional cross breeding techniques may be protected under the laws of Plant Breeder’s Rights (PBR).