India must have more trained professionals to handle the rising trend of patents. Besides efficient administration, the country requires special patent courts to process the pending patent litigations. Else, with a very few patent lawyers and lack of awareness among the people about the benefits of the IPR as a whole, India’s journey to the 21st century global patent system will remain incomplete

The root of the Indian patent system lies at the heart of the British colonial administration. With the coming of the World Trade Organisation (WTO)-Trade Related Aspects of the Intellectual Property Rights (TRIPS) in 1995, the Government of India had to bring massive changes to its original patent law of 1970.

As a signatory to the TRIPS, India had to overhaul the entire patent system as part of its obligation to the agreement. Today, India’s accession to the TRIPS has completed more than 20 years. Thought the Indian patent system has not come up to the level of the advanced countries, yet it has a few good patent laws unlike many other developing nations. The main reason behind this remarkable success of our patent governance system lies in rich background that we had directly acquired from the long rule of the British colonial administration.

This had initially provided a big boost in shaping the post-Independent Intellectual Property governance system in the country as a whole. Before we move on to trace India’s long and arduous journey from the first colonial Patent Act of 1856 to the global patent system of the WTO-TRIPS in 1995, let us focus on the fundamentals of patent in general.

Patent right is the most controversial of all the Intellectual Property Rights (IPR). It is an exclusive right granted to an original inventor or creator for a fixed period. And in return, the inventor has the obligation to divulge his invention in public.

The patentee can exclude any third party from an unauthorised act of making, using, offering for sale, selling or importing the patented product or process within the country during the terms of the patent. A patented invention becomes free for public use after expiry of the terms of the patent or when the patent ceases to have effect on account of non-payment of renewal fee.

In other words, it is a negative right enjoyed by the patentee. The patent also constitutes a trade-off between the State and the inventor. For immediate disclosure of new invention which may assist in scientific progress and economic development then the State grants a limited exclusive right to the inventor. For any invention to be patentable, it has to be novel, constitute an inventive step and also applicable to the industries.  An inventive step is constituted by an invention if it does not form the state-of-the-art in the sense that it could not have occurred to any person skilled in the particular technical field who happened to be asked to find a solution to the particular problem.

It is worthwhile to recount the history of patent rights in India here. When India introduced patent rights, the impact of the British colonial rule was highly evident in these laws from the very beginning. The patent laws/rules passed in India were the direct result of the Acts/rules passed in the British Parliament in those days.

The first patent Act of India was passed by the British colonial Government. It was known as the Act VI of 1856. The aim of this legislation was to encourage new and useful inventions. Second, the Act wanted that the inventors disclose their inventions for the benefit of the State. This Act was subsequently repealed by Act IX of 1857 since it had been enacted without the approval of the Sovereign. Therefore, fresh legislation for granting “exclusive privileges” was introduced in the Act XV of 1859. Thus the new Act comprised some elements of the previous Acts. For instance, grant of special privileges only to those inventions which were useful, extension of priority period from 6 to 12 months, etc.

Specifically this Act excluded the importers from the definition of inventor.

The first patent Act of 1856 was primarily based on the UK Act of 1852, but it had some modifications unlike the earlier Acts.

It specifically allows the assignees to make application in India and also taking prior public use or publication in India or the UK for the purpose of ascertaining novelty. The protection for invention was specified in the Act of 1859, but it had no mention about the protection of designs. At the same time, the protection for designs was available in England since 1842. Therefore to remove this hurdle, the “Patterns and Designs Protection Act” (Act XIII) was passed in 1872. This new Act amended the 1859 Act to include any new and original pattern or design or the application of such pattern to any substance or article of manufacture within the meaning of “new manufacture”.

The Act XV of 1859 was again amended in 1883 by the Act XVI to introduce a provision to protect novelty of the invention, which prior to making application for their protection were disclosed in the exhibitions of India.

A grace period of six months was provided for filing such application after the opening of such exhibition.

It was realised that the laws made in India should be more or less identical to what exists in their counterparts in England or else the Englishmen were more in trouble than the natives. Therefore, in 1888, the Government resolved to come up with a new legislation wherein a consolidation of all laws relating to invention and design would be included.

Again, this new law would be made in conformity with what exists in the same field in England.

In 1911, the Indian Patents and Designs Act, 1911 (Act II of 1911) was introduced to replace all previous legislations on patents and designs. The most important aspect of this Act was that it had brought patent administrative system under the control of the Controller of Patents for the first time. Thus began a new chapter in the history of patent in India. In 1920, the Act was again amended. It further made provisions for same arrangements in the UK and other countries for securing priority.

In 1930, the Act was amended to include provisions for secret patents, patent of addition, use of inventions by the Government and finally to enhance the powers of the Controller to rectify register of patent and extend the patent term from 14 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. Therefore, an urgent need was to consider all these areas under one comprehensive legislation at the earliest. Also the need was felt because of the changing political and economic landscape heralded by the country’s Independence.

Hence, the Government of India formed a committee under Justice (Dr) Bakshi Tek Chand in 1949 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. However, the Act finally came into existence on April 20, 1972. It was truly a national patent Act wherein provisions were made to favour 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. From this to the signing of the TRIPS, India witnessed a long debate both within and outside Parliament.

Finally, the industry lobby, the civil society organisations, and the non-governmental organisations, which initially opposed the entry to the TRIPS, agreed to move on to the same. Many of them even argued that India must not lose the opportunity and should be part of the global patent system. However, from 1995 to 2016, the Indian patent system has been facing a serious competition at the global level. It is not only the matter of upgrading its rules, regulations and infrastructural facilities, but also keeping pace with the rapid changes of the global dynamics in the IP field.

India must have more trained professionals to handle the rising trend of patents. Apart from efficient administration, the country requires special patent courts to process the pending patent litigations. Else, with a very few patent lawyers and lack of awareness among the people about the benefits of the IPR as a whole, India’s journey to the 21st century global patent system will remain incomplete.

(The author is Senior Editor, The Pioneer)