KSLU Solved Question Papers
Intellectual Property Rights I
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 9
2016 Dec Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 9 Intellectual Property Rights I 2016 Dec Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2016 Dec examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2016 Dec examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2016 Dec examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1What is meant by grant of patent ? State the grounds on which grant of patent may be restricted.[16]
Answer
For full marks, cover: Part A, the meaning of grant: when a patent is granted (section 43(1)); publication and inspection (section 43(2)); the date of the patent (section 45); form, extent and one invention (section 46); what the grant confers (section 48) and what it does not guarantee (section 13(4); Bilcare); Part B, how the grant may be restricted: (1) the conditions of every grant in section 47 (Government use of articles and processes, experiment and research including teaching, Government import of medicines; compare Pfizer Corporation v. Ministry of Health); (2) restrictions before grant: refusal for exclusions (sections 3, 4; Novartis), amendment or refusal after examination (section 15), anticipation and prior claiming (section 18), potential infringement (section 19), secrecy directions (sections 35 to 37), pre-grant opposition (section 25(1)), abandonment and withdrawal (sections 9(1), 11B(4), 21); (3) restrictions after grant: post-grant opposition (section 25(2)), revocation (sections 64 to 66), compulsory licences and Government use (sections 84, 92, 100), the term (section 53); a table; the conclusion.
Part A: What grant of a patent means
When a patent is granted (section 43)
Section 43(1) of the Patents Act, 1970 governs grant. A patent is granted when the application is found in order, and has not been refused or found to contravene the Act. The patent is then granted as quickly as possible to the applicant, or jointly to joint applicants, under the seal of the patent office. The date of grant is entered in the register.
On grant, the Controller publishes the fact. The application, specification and related documents then become open to public inspection (section 43(2)).
The date and form of the patent (sections 45, 46)
- Date. Every patent is dated as of the date on which the application was filed (section 45(1)). The twenty-year term runs from that date (section 53).
- Infringement before publication. No suit lies for an infringement committed before the application was published (section 45(3)).
- Form and extent. Every patent is in the prescribed form and has effect throughout India (section 46(1)).
- One invention. A patent is granted for one invention only (section 46(2)). But no one may attack a granted patent on the ground that it covers more than one invention.
What the grant confers (section 48)
The patentee may prevent others, without his consent, from making, using, offering for sale, selling or importing the patented product in India. For a process, he may prevent its use and dealings in the product obtained directly from it. Section 48 begins: "Subject to the other provisions contained in this Act and the conditions specified in section 47". So the grant is limited from the start.
What the grant does not guarantee
Examination does not warrant the validity of any patent (section 13(4)). In Bilcare Ltd v. Amartara Pvt Ltd, 2007 (34) PTC 419 (Del), the patentee of a packaging film sought an interim injunction. The defendant challenged the patent's validity. The Delhi High Court refused the injunction, because a recently granted patent carries no presumption of validity under section 13(4).
Part B: How the grant may be restricted
1. The conditions of every grant (section 47)
Every patent is granted subject to four conditions.
1. Government use of articles (section 47(1)). The Government may import or make a patented machine, apparatus or article, merely for its own use. The same applies to an article made by a patented process.
2. Government use of processes (section 47(2)). A patented process may be used by or on behalf of the Government, merely for its own use.
3. Experiment, research and teaching (section 47(3)). Any person may make or use a patented article, or use a patented process, merely for experiment or research. This includes imparting instructions to pupils. So a university may test an invention and a teacher may demonstrate it.
4. Medicines for public institutions (section 47(4)). The Government may import a patented medicine or drug merely for its own use. It may also distribute it in dispensaries, hospitals and medical institutions run by it, or notified by the Central Government for their public service.
Why these conditions exist. They balance the private monopoly against public needs: government functions, the progress of science and public health. The idea is old. In Pfizer Corporation v. Ministry of Health, [1965] AC 512, the British Minister of Health arranged for a patented antibiotic to be supplied to public hospitals. The House of Lords held this was use for the services of the Crown, which the patentee could not stop.
The limit of section 47. These uses are free, but narrow. They must be "merely" for the Government's own use, or for research or teaching. Wider Government use, such as supplying the public, falls under Chapter XVII (sections 99 to 103), where the patentee must be paid.
2. Restrictions before grant
1. Things that are not inventions (section 3), and atomic energy (section 4). No patent is granted for these at all.
Section 3(d) has proved important. In Novartis AG v. Union of India, (2013) 6 SCC 1, Novartis sought a patent for the beta crystalline form of imatinib mesylate, sold as Glivec. The application was refused after pre-grant oppositions. The Supreme Court upheld the refusal. A new form of a known substance must show enhanced therapeutic efficacy, which Novartis had not proved.
2. Refusal or required amendment (section 15). If the application or specification does not comply with the Act, the Controller may refuse it, or require it to be amended.
3. Anticipation and prior claiming (section 18). Where the invention has been anticipated, the Controller may refuse the application unless the applicant shows an earlier priority date or amends the specification. Where another specification claims it, he may insert a reference to that specification.
4. Potential infringement (section 19). The invention may be impossible to work without a substantial risk of infringing another patent's claim. The Controller may then insert a reference to that patent in the specification, as notice to the public.
5. Secrecy directions (sections 35 to 37). For an invention relevant for defence, the application may proceed up to grant, but no patent is granted while the direction lasts.
6. Pre-grant opposition (section 25(1)). Any person may oppose on grounds such as wrongful obtaining, anticipation, obviousness, insufficiency or non-disclosure of the source of biological material. The Controller may then refuse the grant or require amendment.
7. Abandonment and withdrawal. The application is deemed abandoned if the complete specification is not filed within twelve months of a provisional (section 9(1)). It is also deemed abandoned if not put in order for grant within the prescribed time (section 21). It is treated as withdrawn if examination is not requested in time (section 11B(4)).
3. Restrictions after grant
- Post-grant opposition (section 25(2)). Within a year of the publication of grant, any person interested may oppose. The Controller may maintain, amend or revoke the patent.
- Revocation (sections 64 to 66). The High Court may revoke a patent on the grounds in section 64. The Controller may revoke or amend one relating to atomic energy (section 65). The Central Government may revoke one that is mischievous to the State or prejudicial to the public (section 66).
- Compulsory licences and Government use (sections 84, 92, 100). The patent stands, but others may work it on terms, with royalty or remuneration to the patentee.
- The term (section 53). The patent lasts twenty years from filing. It ends earlier if renewal fees are not paid.
Summary
| Stage | Restriction | Sections |
|---|---|---|
| Every grant | Government use, research and teaching, medicines | 47 |
| Before grant | Exclusions; refusal or amendment; anticipation; references; secrecy; opposition; abandonment | 3, 4, 9, 11B, 15, 18, 19, 21, 25(1), 35 to 37 |
| After grant | Opposition; revocation; licences; Government use; term | 25(2), 53, 64 to 66, 84, 92, 100 |
Conclusion. A patent is granted under seal when the application is in order and not refused (section 43). It is dated from filing, has effect throughout India and covers one invention (sections 45, 46). It confers the rights in section 48, but does not guarantee validity (section 13(4); Bilcare). Every grant is subject to the conditions of section 47: free Government use, research and teaching, and import of medicines for public institutions. That balance is long recognised (Pfizer Corporation v. Ministry of Health). Before grant, the patent may be refused or limited for exclusions (Novartis), anticipation, potential infringement, secrecy or opposition. After grant, it remains open to opposition, revocation and compulsory licences.
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