Development of patent law in India

In India the first legislation in India, relating to patent was the act VI of 1856. The objective of this was to encourage new and useful invention and to induce inventor to disclose secret of their inventions for the society. This act was repealed by act IX of 1857 since it was ratified without the approval of the British crown.

In 1859, Act XV of 1859 was introduced as first legislation of granting exclusive privileges. This Act contain certain modification such as grant of exclusive privileges to useful invention, extension of priority period from 6 to 12 month. However, in 1872, the act of 1859 was merge to provide protection relating to designs. It was renamed as patterns and designs protection act under act XIII of 1872 and further amendment in 1883 .i.e. Act XVI of 1883 to protect novelty of the invention.

Act II of 1911, the Indian patent and designs Act replaced the entire previous act. For the first time, this act brought patent administration under the management of controller of patent. In 1920 Further amendment was done to enter into reciprocal arrangement with UK and other countries for securing priority. In 1930 further amendment were made to incorporate, provision relating to grant of secret patents, patent of additional use of invention by government power of controller to rectify register of patent and increase of term of the patent i.e. 14years to 16 years. In 1945, an amendment were made regarding the filing and submission of provisional specification and complete specification within 9 months.

After independent, it was fell that the Indian patent and designs Act, the Indian patent and design act of 1911 was not fulfilling its objective, it was found desirable to rectify comprehensive patent law. In 1949 A committee was constituted under the chairmanship of justice (dr.) Bhakshi Tek Chand, a retired judge of Lahore high court, to review patent law in India.

• The term of reference include
• To survey on the working of the patent system in India
• To examine the existing patent legislation in India and make recommendation for improving it
• Any special restriction regarding food and machine
• Examine working of patent office and the services
   

The committee submitted its report on fourth august 1994 and recommended for prevention of misuse or abuse of patent right in India and suggested amendment to section 22, 23,23A of patent and design act.

It recommended a clear indication to ensure that food, medicine, and surgical and curative devices are made available to the public at cheapest price. Based on this. The act once again amended in relation to working of invention and compulsory license in 1950

The government of India appointed justice N. Rajagopala Ayyangar Committee to examine the question of revision of the patent law. The report submitted comprised of two part, the first part deal with general aspect of patent law and 2nd part deal with several clause of the lapsed bills 1953 and passed in 1970. This act repealed and replaced the act of 1911; however 1911 act continued to be applicable to designs

Act of 1970, amended 3 times, after this, the ordinance was later replaced by the patents (amended) Act 2005 (act 15 of 2005) on April 4th 2005 which was brought in force from 1st January 2005

Challenges in protecting/ grant of patent right

The India patent Act has specific provisions covered under section 3 that make the patentability of an invention relating to subject matter such as

1. Derivatives of a pharmaceutical drugs
2. Patentability of stem cell
3. Diagnostic method and kits
4. Isolated DNA sequences
5. Computer related invention

These provisions are in addition to the global patentability requirement for invention to have novelty inventive step, and industrial applicability

1. Computer related invention
   Section 3(k) of Indian patent act bars patentability of computer programs per se or algorithm. This works as default for all computer related invention. Controller takes the decision on this type of cases and there are no consistent method, they have their own viewpoints.
    
2. Patentability of derivatives of pharmaceutical substances.
   Section 3(d) of Indian patent act restrict patentability of derivative of a pharmaceutical compound. The derivatives have to show therapeutic efficacy for patent, section 3(d) objection should be theoretically be raised only for derivatives of pharmaceutical substances. However, the objection is invariable raised for all application relating to pharmaceuticals drugs even in the case of innovator compounds
    
3. Patentability in the life science/biotechnology sector
   The life science sector faces difficulty in terms of patentability of in-vitro diagnostic method and kit because they fall within the category of treatment method. In addition, isolated DNA sequence are also not satisfying the novelty requirement.

Challenges in enforcement of patent-right in India
Patent right in India can be enforced through civil court, but there is no special IP court to deal with cases.

Compilation of cases and Time to final decision
The basic challenge in the enforcement of patent right is the time it takes for the court to make a final decision. A lawsuit regarding patent generally take 5 to 7 yr. to final decision after trial. The backlogs of cases and less number of judicial officers have an impact to decide a case on time.

Experts of the subject matter
Section 115 of Indian patent act provides appointment of a scientific advisor to assist the court in providing opinions on technical aspect of the matter. This provision has not been use by the court as much as it should be. In patent infringement, the expert helps to improve the quality of decision and speedy trial.

Do we need amendment in our patent law?
As we, all know that patent is for the protection of the right of the patent holder and it provides the guidelines to apply for the patent. So from the above situation that are coined, I think that the patent act of India needs amendment in some areas as the nation has developed and to promote more and more invention and innovation in India.

If we give patent on traditional knowledge that are present in India from ancient ages of some groups, they can apply for patent as a group for that whole community. There are many cases where the western world are getting patent on our traditional knowledge (neem tree case, turmeric case). We should also promote it for the development of the country and people. We learn from prior knowledge, but India put a full stop regarding prior knowledge.

India is rich in biodiversity. India can give patent to its plant variety. It will be beneficial for plant too as it can protect plant and promote afforestation. It will also increase research and development related to use of plant in medicine purpose. Although united state grant patent on plant (neem tree case, turmeric case).

India can also promote patent on computer program or business model. It is also granted by the United States but India is not granting patent in these, and it backfire on India's economy.

Ramdev baba's company is based on ayurvadic medicine, but as India is not granting patent on plant, anyone can use these medicinal herb.

Examination timeline: currently, the examination process for patent application in India can be slow and unpredictable, leading to long delays in the granting of patents. Amending the law to set specific timeline for examination.

Compulsory licensing: compulsory licensing provision allow the government to license a patent to a third party in certain circumstances, such as in the case of public health emergency. Amending the law and make it available only when needed not when government want.

Patent term: the patent term in India is currently 20 tears from the date of filing, regardless of the time taken for examination. Amending the law to provide for a more flexible patent term, such as 20 years from date of grant, could help ensure that innovators are rewarded for their efforts while still allowing for timely submission.

Disclaimer: there is no need of disclaimer in the form as it will be checked on the later basis and it they found that their is prior art than it will be canceled.

Conclusion
The patent law is an essential legal framework that plays a crucial legal framework that plays a crucial role in promoting innovation and protecting the right of inventors and businesses. In India, the patent law has been instrumental in fostering technological progress and driving economic growth, by incentivizing companies to invest in research and development and allowing them to monetize their invention. As patent protects the rights of a patent holder,

I think India is more capable than what India is at now, granting patent on plantation, computer programing, traditional knowledge, etc. will help India in its growth and development from the ground base. Therefore, government should think about it and make suitable reforms. Government should make a special court for IP for early disposal of cases. Despite its many successes, Indian patent law faces many challenges, including limited patentability criteria, lengthy granting of patent process. Addressing these issues through appropriate amendments to the law will be crucial in ensuring the India's innovation ecosystem continues to thrive and contribute to the country's growth and development.

Bibliography:

• https://www.managingip.com/article/2aoxklwruxdndbh8ol0xs/sponsored-content/amending-claims-in-indian-patent-applications
• https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Final_FREQUENTLY_ASKED_QUESTIONS_-PATENT.pdf
• https://www.legalserviceindia.com/article/l400-Controversy-of-Section-3(D)-of-The-Indian-Patent-Act.html
• https://ipindia.gov.in/history-of-indian-patent-system.htm
• Patent Act, 1970