KSLU Solved Question Papers
Intellectual Property Rights I
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 9
2018 Jun Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 9 Intellectual Property Rights I 2018 Jun Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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Contents
The questions below are the paper as Karnataka State Law University set it at the 2018 Jun examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2018 Jun 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.
Q1Discuss the Principles underlying the patent law in India with exceptions, if any.[16]
Answer
For full marks, cover: the definition (section 2(1)(m), read with "invention" in section 2(1)(j)) and the meaning of "letters patent"; the nature of a patent; a short history (1856, 1911, the Ayyangar Report of 1959, the 1970 Act in force 20 April 1972, the TRIPS amendments of 1999, 2002 and 2005); the theories behind patents; the principles, grouped: (A) what can be patented (invention not discovery; novelty; inventive step; industrial application; exclusions, Novartis); (B) how a patent is obtained (first to file and priority; full disclosure as the price, Biswanath Prasad; publication, examination on request, opposition; no warranty of validity); (C) what the patent gives (a negative, exclusive, territorial right for twenty years, with exceptions); (D) the public interest (section 83 (a) to (g); compulsory licences, Bayer; working statements, Shamnad Basheer; Government use; revocation); criticism.
Definition
Section 2(1)(m) of the Patents Act, 1970 defines a patent as "a patent for any invention granted under this Act". The definition depends on "invention". Under section 2(1)(j), an invention is "a new product or process involving an inventive step and capable of industrial application".
In simple words, a patent is a grant by the State to an inventor. It gives him the exclusive right, for a limited time, to stop others from making, using, selling or importing his invention in India. In return, he must disclose the invention fully to the public. The word comes from "letters patent", meaning open letters of the Crown granting a privilege.
Nature of a patent. It is a property right in an intangible thing. It is a negative right: it lets the patentee exclude others. It does not itself permit him to work the invention if another law forbids it. It is territorial, temporary and transferable by assignment or licence (sections 68 to 70).
History in brief
India's first patent law was Act VI of 1856, based on a British statute. The Indian Patents and Designs Act, 1911 followed. After independence, the Ayyangar Committee reported in September 1959. It saw the patent as a bargain whose terms the State may set in the public interest. The Patents Act, 1970 came into force on 20 April 1972. It allowed only process patents for food, medicines and chemicals. To meet the TRIPS Agreement, India amended the Act in 1999, 2002 and 2005. The 2005 amendment restored product patents in all fields.
The theories behind patents
- Reward. An inventor deserves a return for his effort.
- Incentive. Without protection, rivals would copy at once, and nobody would invest in research.
- Disclosure, or social contract. The State gives a monopoly in return for publishing the invention. Knowledge then spreads, and the invention passes to the public at the end of the term.
- Development. Patents should lead to inventions being worked locally and technology being transferred. The Indian Act stresses this most.
The principles
A. What can be patented
1. An invention, not a discovery. Finding what already exists in nature, or a scientific principle, is not an invention (section 3(c)). Putting it to practical use may be.
2. Novelty. The invention must not have been published or used anywhere in the world before the filing date (section 2(1)(l)). Indian novelty is absolute, not local.
3. Inventive step. It must involve a technical advance or economic significance and must not be obvious to a person skilled in the art (section 2(1)(ja)).
4. Industrial application. It must be capable of being made or used in an industry (section 2(1)(ac)).
5. Public policy exclusions. Even a new and inventive thing is refused if section 3 or section 4 excludes it. Examples are inventions against public order or morality (section 3(b)) and methods of treatment (section 3(i)). Plants and animals (section 3(j)) and computer programmes per se (section 3(k)) are also excluded. So are traditional knowledge (section 3(p)) and inventions relating to atomic energy (section 4).
The leading case on exclusions is Novartis AG v. Union of India, (2013) 6 SCC 1. Novartis sought a patent on the beta crystalline form of imatinib mesylate, its leukaemia drug Glivec. Imatinib itself had been patented abroad in the 1990s. The Supreme Court upheld the refusal under section 3(d). A new form of a known substance is patentable only if it shows enhanced efficacy. For a medicine, that means enhanced therapeutic efficacy, judged strictly. Better flow or stability did not count. The Court called section 3(d) a second, separate gate after section 2(1)(j). The principle is that India rewards real advances, not "evergreening" of old drugs.
B. How a patent is obtained
6. First to file, and priority. The true and first inventor, or his assignee, may apply (section 6). Between rivals, the earlier filing date wins. Each claim takes a priority date (section 11), and a Paris Convention application gets twelve months' priority (section 135).
7. Full disclosure as the price. The complete specification must describe the invention fully, disclose the best method of performing it, and end with claims defining its scope (section 10(4)). An insufficient specification is a ground for opposition and revocation (sections 25, 64(1)(h)).
In Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, a patent had been granted for a method of holding brass utensils on a lathe. The Supreme Court revoked it as a mere workshop improvement. It explained the object of patent law: to encourage scientific research and industry. The price of the monopoly is disclosure, after which the invention passes to the public. The Court also held that grant does not guarantee validity.
8. Publication, examination and opposition. The application is published after eighteen months (section 11A). It is examined only on a request made within thirty-one months of priority or filing (section 11B; rule 24B). Any person may oppose before grant, and an interested person may oppose within one year after grant (section 25).
9. No warranty of validity. Examination does not guarantee that the patent is valid (section 13(4)). It may be revoked later under section 64.
C. What the patent gives
10. An exclusive, negative right. For a product, the patentee may stop others from making, using, offering for sale, selling or importing it in India. For a process, he may stop others from using it and dealing in its direct product (section 48).
11. A limited term. Twenty years from the date of filing, if renewal fees are paid (section 53). After that, anyone may use the invention.
12. Exceptions. Use for research, teaching and by the Government does not infringe (section 47). Nor does use in foreign vessels in India (section 49), or use for regulatory approval and parallel imports (section 107A).
13. Territoriality. An Indian patent works only in India.
D. The public interest: section 83
Section 83 sets out general principles that guide the powers on working and licences. Patents are granted:
- to encourage inventions and secure their working in India on a commercial scale (clause (a));
- not merely to give a monopoly over imports (clause (b));
- to promote innovation and the transfer of technology, with a balance of rights and obligations (clause (c));
- without impeding public health and nutrition, or the Government's measures to protect public health (clauses (d), (e));
- without abuse or practices that unreasonably restrain trade (clause (f)); and
- to make the invention available at reasonably affordable prices (clause (g)).
The Act enforces these principles in several ways.
- Compulsory licences. After three years from grant, any person interested may seek a compulsory licence (section 84). In Bayer Corporation v. Union of India, 2014 SCC OnLine Bom 963, Bayer's cancer drug sorafenib cost about Rs 2,80,000 a month. Natco offered it at about Rs 8,800. The Bombay High Court upheld India's first compulsory licence. It held that affordability is judged from the public's standpoint.
- Working statements. Patentees must report working in India in Form 27 (section 146; rule 131). In Shamnad Basheer v. Union of India, AIRONLINE 2018 Del 349, a public interest petition complained that these statements were not filed or enforced. The Delhi High Court recorded the Government's undertaking to reform rule 131 and Form 27 on a timetable. Form 27 is now filed once every three financial years.
- Government use and acquisition (sections 99 to 102), and revocation in the public interest (section 66).
Criticism
Patent law in India is criticised from two sides. Patentees say section 3(d) and compulsory licensing weaken incentives to invent medicines. Public health groups reply that these provisions are lawful TRIPS flexibilities, confirmed by the Doha Declaration of 2001. Others point to delays in examination and to the cost of enforcing patents.
Conclusion. A patent is a State grant of an exclusive right over an invention for twenty years, in exchange for full disclosure. Indian patent law rests on clear principles: only new, inventive and useful inventions qualify, subject to the public policy exclusions applied in Novartis. Disclosure is the price of the monopoly (Biswanath Prasad), and grant carries no warranty of validity. Above all, the right serves the public interest under section 83, enforced through compulsory licences (Bayer) and working statements (Shamnad Basheer).
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