By Jalaj Tokas
Published On: November 21, 2021 at 14:30 IST
According to Joseph Stiglitz and Bruce Greenwald, “Knowledge is the most important factor that is driving development in the new era.”
Traditional value-creating sources of production such as land and capital are no longer the sole ones. Knowledge and ideas also add value to the economy in today’s tech-driven economic climate. India is a member of a global society where technical advancements are made on a regular basis. This lays the groundwork for patenting both processes and products.
The rights which are granted to individuals over the works of their mind are called Intellectual Property Rights. For a set amount of time, they generally grant the inventor exclusive rights to exploit his or her invention. A patent, trademark, copyright, marketing strategy, trade secrets, or a combination of these may be required to protect your idea.
And one of the most powerful intellectual property rights is a patent, because inventions have enormous industrial applications and hence, they carry potential to generate lot of money. Every country has an intellectual property system, which consists of laws and organizations that make innovations and other intellectual works easier to produce. Our Government too, awards a right of protection to the inventor, for a set length of time, called a Patent to protect a specific product or technique. The Indian government introduced dual patent systems as part of the 2005 Patent Amendment Act.
This article is an attempt to highlight and make its readers realize the advantages of their discoveries because if ideas were not protected, then we’d spend less time researching and innovating. It tries to make its readers well-versed with their IP rights, with special regard to patents, as their protection is essential for supporting innovation in the society.
What is a Patent?
A patent, according to the Patents Act of 1970, is a legislative right awarded by the government to the inventor for a specific period of time. The innovator can use patent protection to prevent others from making, selling, or utilizing his or her patented product or procedure. A patent is a right awarded for an innovation, which is primarily a product or a technique that gives a new technological solution to a problem or provides a new way of doing something in general.
Patents are intellectual property rights that are restricted to a certain geographical area. Exclusive rights are generally only enforceable in the nation or territory where a patent has been filed and granted, in compliance with that country’s or region’s laws. In order to obtain a patent, technical details about the innovation must be made public in a patent application.
In essence, the patent owner has the sole right to block or prohibit others from commercializing the protected idea. In other words, patent protection prevents others from commercializing, using, distributing, importing, or selling the innovation without the permission of the patent owner.
Inventors and industrialists want patent protection the most of all Intellectual Property assets since it grants them a ‘Monopoly Right’ for a certain amount of time for their innovative product or procedure. In India, there are two patent regimes that are used to get patent protection: Product Patents and Process Patents.
The Product and Process Patent Regimes vary vastly. While, Product patents are used in developed economies. The developing countries, on the other hand, prefer the process patent system. The two systems are distinguished by the varying amounts of protection they provide to innovators.
What is a Product Patent?
It is an exclusive right awarded to the product’s original developer. This implies that no other creator can make the same product using the same or any other similar process. The inference being that the maker will not face competition since the product is patented. As a result, there will be no other patent holders. And hence, the Product Patent system offers a greater amount of protection to the innovator.
The patent is issued to the product’s original creator under this system. A Product Patent has the following characteristics:
- When a product patent is granted, it means that no one other than the inventor may make the same product using the same or a similar technique.
- A product patent gives the creator a “True Monopoly” right.
- When compared to process patents, product patents are thought to provide a better level of protection.
What is a Process Patent?
A process patent, as the name suggests, is given to a specific method rather than the final product that is created as a consequence of that process. A process patent is issued for a specific manufacturing method rather than for the product itself. Any other creator can create the exact thing but by employing some other process by adjusting various parameters. Because of the potential of alternative production processes, we can infer that several producers for the same product can exist.
- The safeguarding is seen as a limited parent. This prohibits any other manufacturer from developing the same thing.
- A process patent offers the inventor a limited amount of protection. As a result, there’s a good probability that competitors may reverse engineer the product.
- A single product might also have many method patents.
Difference between Product and Process Patent
|Basis||Product Patent||Process Patent|
|Terminology||The ‘End Result’ or ‘the creation’ is protected by a patent.||Only the method is protected by a process patent and not the actual ‘creation’.|
|Legislature||The concept of Product Patents was primarily introduced by The Patents (Amendment) Act, 2005.||To recognize and acknowledge Process Patents in India, The Indian Patent Act, 1970 was enacted.|
|Illustration||Not only will the changed DNA be protected, but the procedure will be protected as well.||The process of altering DNA is recognised by the Indian Patents Act, 1970. Hence, the patent will be granted to the procedure under this.|
- Process for manufacture being identical to process patent – DSM Sinochem Pharmaceuticals Netherlands B.V. Vs Sinopharm Weiqida Pharmaceutical Co.[i]
The Delhi High Court, after viewing the chart which depicts the process patent of the plaintiff and process of manufacture being followed by the defendantin this case, held that there was no serious dispute of the contents of the aforesaid chart. It was evident that the defendant’s manufacturing process was almost identical to that of the plaintiff’s patent. Regardless of the interim injunction, the defendant was clearly infringing on the plaintiff’s patent. The Court, while keeping a lenient view of the matter, restrained the defendants from importing the said product.
- Infringement of a Process Patent remains unaffected by an import licence – Teva Pharmaceutical Industries Ltd. Vs Natco Pharma Ltd.[ii]
In an action brought forth for alleged infringement of the patent process for the purposes of export to the US and elsewhere, the Delhi Court in highlighted that the subject-matter of the suit was a process patent and it was irrelevant whether the defendants had an office in Delhi or a distributor in Delhi or not.
The Court emphasised on the fact that it is irrelevant whether the defendant has obtained an import licence from the Central Drug and Standard Control Organisation or that it has marketing approval to sell glatiramer acetate in India or that it is already selling “Glatimer” by the Indian process in Delhi as regards to the question of jurisdiction in a suit for alleged infringement of a process patent for the purposes of export to the US and elsewhere.
- What Constitutes a Subject Matter – Lallubhai Chakubhai Jariwala Vs Chimanlal Chunilal and Co.[iii]
The Court held that a patent’s subject-matter must be a new creation or art, because if there is no new creation or art, then there is no subject-matter and hence no invention. In each case, the question as to whether or not there is an invention is a matter of fact. An excellent subject-matter could be formed by the useful application of even an old theory. A fresh combination of previously known matters, as well as an improvement on something already known, may provide good subject-matter.
The simple coalition of two or more objects, however, doesn’t form the subject-matter for a patent as it does not involve any creative idea in combining them.
- The Effect of Grant of Patent – Raj Prakash Vs Mangat Ram Choudhary and others[iv]
The Court held that the effect of the grant of a patent is quid pro quo, quid is the knowledge disclosed to the public and quo is the monopoly granted for the term of the patent. Elaborating on the same, the Court resonated with Section 12 of The Patents and Designs Act of 1911 which states that once a patent is granted, the patentee has the exclusive right to make, sell, and use the invention throughout India, as well as to authorise others to do so. This is the status quo. The quid being the different provisions that are to be followed, resulting in the grant of the patent.
- Rights Rewards of a Patentee – Telemecanique & Controls (I) Limited Vs Schneider Electric Industries SA[v]
While up-holding the order of the learned single Judge in granting interim injunction, the Court undoubtedlyheld that a patent grants the patentee a statutory privilege that protects the patentee from any unauthorized use of his patent item. It rejected the argument that a patentee is not entitled to an injunction if a violation has been shown in case of a registered patent, subject to the patent being used. It highlighted that the reward for an inventor’s innovation is the patent monopoly awarded to him.
Intellectual Property is an unbiased issue that is shared by a large spectrum of interests. Patents aren’t just abstract ideas; they’re also extremely useful in everyday life. Patents support the development of breakthroughs and new technology in all fields by rewarding ideas.
One of the primary goals of the patent system is to promote technical innovation by awarding a financial incentive for R&D. The patent system also helps in technical knowledge dissemination and technology transfer. Ever since then, recognizing various forms of creativity and innovation as protectable intellectual property is being valued and applauded in the society.
ABOUT THE AUTHOR
Jalaj Tokas is a second Year Law student pursuing B.A.LLB from University School of Law and Legal Studies, GGSIPU, New Delhi. He is a life-long learner is self driven towards his ambitions. He strongly believes that expectations are premeditated disappointments and strives not just to be successful but more importantly to be of value.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
- Patent Basics
- The Trickle-Down Effect of Product Patent in India and On the Developing World
- Can You Patent a Process: Everything You Need to Know
[i] DSM Sinochem Pharmaceuticals Netherlands B.V. Vs Sinopharm Weiqida Pharmaceutical Co., 2019 SCC OnLine Del 7207.
[ii] Teva Pharmaceutical Industries Ltd. Vs Natco Pharma Ltd., 2014 SCC OnLine Del 924.
[iii] Lallubhai Chakubhai Jariwala Vs Chimanlal Chunilal and Co., AIR 1936 Bombay 99.
[iv] Raj Prakash Vs Mangat Ram Choudhary and others, AIR 1978 Delhi 1.
[v] Telemecanique & Controls (I) Limited Vs Schneider Electric Industries SA, 2002 (24) PTC 632 Delhi (DB).