The Indian Patents and Designs Act 1911
Chapter Twenty-One
Syllabus topic 1.4, "History of Indian Patent System"
Pages 81 to 83 of 524
In one line
The 1911 Act ran Indian patent law for sixty-one years, gave the country its first Controller of Patents, and was repealed so far as it relates to patents in 1972 because it was thought to be serving foreign patentees rather than Indian industry.
In the wording a student can write in an exam: the Indian Patents and Designs Act, 1911 (2 of 1911) established the office of the Controller of Patents and Designs and governed both patents and designs until the Patents Act, 1970 repealed it so far as it relates to patents by section 162 and the Schedule, leaving it in force for designs until the Designs Act 2000.
What the 1911 Act did
It created the administration. For the first time India had a Controller of Patents and Designs and a patent office to administer the system, rather than a system of privileges granted case by case.
It ran patents and designs in one statute, which is why its repeal in 1970 had to be partial: section 162 repealed it "in so far as it relates to patents", and the Schedule to the 1970 Act carried out that surgery clause by clause. What remained governed designs until the Designs Act 2000 replaced it entirely.
It set a fourteen-year term, extendable in certain cases.
It provided for compulsory licences and for revocation on the ground of non-working, but on conditions that made them very hard to obtain in practice.
And it granted patents for substances as well as for processes, including food, medicine and chemicals, with no exclusion of any field.
How grant and validity worked under it
Grant was on a limited examination, and validity was tested only when the patent was litigated. The Supreme Court said this plainly in Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, a case decided under the 1911 Act: the grant and sealing of a patent, or the Controller's decision in an opposition, does not guarantee the validity of the patent, which can be challenged in revocation or infringement proceedings. The Court added that this is now expressly provided by section 13(4) of the 1970 Act.
The definition of "invention" carried no requirement of usefulness on its face, and the courts read one in, the Supreme Court noting in the same case that the foundation for doing so was that section 26(1)(f) of the 1911 Act made lack of utility a ground of revocation. Chapter 430 works through why the 1970 Act took a different route.
And section 26 of the 1911 Act was the revocation provision, with section 29 containing the proviso under which a revocation petition and an infringement suit were transferred to the High Court, which is how Biswanath Prasad itself reached the Allahabad High Court.
The Indian Patents and Designs Act 1911
The three complaints that killed it
One: the patents were foreign and were not worked. By the 1950s the great majority of patents in force in India were held by foreigners, and most were not worked in India at all. The patent was being used to secure the Indian market for imports, which is exactly the abuse section 83(b) of the present Act now names.
Two: medicine prices. Because substances were patentable, an imported medicine could be monopolised in India for the full term, and Indian prices for several important drugs were among the highest in the world. That single fact did more than any other to produce the 1970 Act.
Three: the law had never been rewritten for an independent country. The 1911 Act was drafted before the First World War for a colonial economy, and had been amended piecemeal. Independence in 1947 changed the policy question completely, and nothing in the statute reflected it.
A worked example
A pharmaceutical company in Basel patents a new antibiotic substance in India in 1955.
Under the 1911 Act it obtains a patent on the substance itself, not merely on the process for making it, and the term runs fourteen years.
No Indian manufacturer may make the antibiotic by any route. A different and better process invented in Hyderabad still infringes, because the substance claim covers the compound however made.
The company imports the antibiotic and sets the price. A compulsory licence is theoretically available for non-working, but the conditions and the proof required make it practically unobtainable.
Now compare the position after 1970. Section 5 of the 1970 Act, as originally enacted, provided that for inventions claiming substances intended for use as food, medicine or drug, and for substances prepared or produced by chemical processes, no patent should be granted for the substance itself, but claims for methods or processes of manufacture were patentable. The Hyderabad manufacturer's better process becomes patentable, and making the antibiotic by it is not an infringement. Chapter 460 works through what that change did to the Indian industry, and chapter 470 through why section 5 was itself omitted in 2005.
What it does NOT mean
It does not mean the 1911 Act was badly drafted. It was a competent statute for the policy it served. The objection was to the policy.
It does not mean the 1911 Act is wholly gone. It survived for designs until the Designs Act 2000, and section 162(5) of the 1970 Act preserved pending suits and revocation proceedings, which is why cases decided in the 1970s were still being decided under it.
The Indian Patents and Designs Act 1911
And it does not mean cases decided under it are worthless. Biswanath Prasad is a 1911 Act case and remains the leading Indian authority on inventive step, because the concepts of novelty and obviousness did not change with the statute.
Quick revision
Indian Patents and Designs Act, 1911 (2 of 1911). Created the Controller of Patents and Designs; ran patents and designs together; fourteen-year term; substances patentable in every field including food, medicine and chemicals.
Repealed so far as it relates to patents by section 162 of the Patents Act 1970 and the Schedule to that Act; survived for designs until the Designs Act 2000.
Section 26 was its revocation provision; section 26(1)(f), lack of utility, is why the Indian courts read usefulness into the definition of invention.
The three complaints: foreign-held patents not worked in India; high medicine prices flowing from substance patents; a colonial statute never rewritten for an independent country.
Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511 was decided under it, and held that grant and sealing do not guarantee validity, a rule section 13(4) of the 1970 Act now states expressly.
Test yourself
1. Why was the 1911 Act repealed only in part? Because it governed both patents and designs. Section 162 of the Patents Act 1970 repealed it in so far as it relates to patents, by amending it in the manner specified in the Schedule, and it continued to govern designs until the Designs Act 2000.
2. Give the three main criticisms of the 1911 Act. That most patents in force were held by foreigners and were not worked in India, so the system secured the market for imports; that patentability of substances including medicines produced very high prices; and that the statute was a pre-independence law never rewritten for the policy of an independent country.
3. What did the Supreme Court say in Biswanath Prasad about the effect of a grant? That the grant and sealing of a patent, or the Controller's decision in an opposition, does not guarantee the validity of the patent, which may be challenged on various grounds in revocation or infringement proceedings, a position section 13(4) of the 1970 Act now states expressly.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.