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Law of Patents
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LLM · Group 3 Law of Intellectual Property and Information Technology
2025-26 Examination
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LLM Group 3 Law of Intellectual Property and Information Technology Law of Patents 2025-26 Question Paper with Solutions
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First published on munotes.in on 13 September 2026.
This edition revised 14 September 2026.
Published by munotes.in, Mumbai.
Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2025-26 examination.
The law in these answers is stated as at September 2026, and four things date every textbook on this subject. THE INTELLECTUAL PROPERTY APPELLATE BOARD NO LONGER EXISTS: the Tribunals Reforms Act, 2021 omitted sections 116, 117, 117B, 117C and 117D of the Patents Act and substituted HIGH COURT for Appellate Board in section 117A, so appeals from the Controller and revocation petitions under section 64 now lie to the High Court, which is why the Delhi High Court framed its Intellectual Property Rights Division Rules in 2022. THE PENAL CHAPTER HAS BEEN CUT DOWN TWICE: the Jan Vishwas (Amendment of Provisions) Act, 2023 took effect for this Act on 1 August 2024 and turned sections 120, 122(1), 122(2) and 123 into PENALTIES imposed by an adjudicating officer under a new section 124A with an appeal under section 124B, omitting section 121 altogether; and the Jan Vishwas (Amendment of Provisions) Act, 2026, passed on 2 April 2026, took effect for this Act on 1 JUNE 2026, OMITTING SECTION 119 on falsification of the register in its entirety and adding a proviso to section 118 which, in the case of a contravention of section 39 only, disapplies it where in the opinion of the Central Government the invention was not relevant for defence purpose or atomic energy, so that section 118 is now the ONLY substantive criminal offence left in the Patents Act. THERE IS NO PATENT AMENDMENT ACT OF 2016, although one paper in this folder asks for its crucial features: the last amending Act is the Patents (Amendment) Act, 2005, and 2016 produced the Patents (Amendment) Rules, which introduced expedited examination and the startup category. AND THE RULES HAVE MOVED AGAIN: the Patents (Amendment) Rules, 2024, in force 15 March 2024, cut the time for requesting examination from forty eight months to thirty one, made the Form 27 statement of working triennial instead of annual, and codified the divisional application practice settled by the Division Bench in Syngenta Limited v. Controller of Patents and Designs on 13 October 2023.
Contents
The questions below are the paper as the University of Mumbai set it at the 2025-26 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2025-26 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 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.
1)Analyze in detail the nature, objective and scope of patents law in India.[25]
Answer
For full marks, cover: three words and each deserves its own heading. NATURE is what kind of right a patent is, and there are four things to say about it. OBJECTIVE is why the State grants it, and the Act answers that itself in section 83, which is unusual and should be quoted. SCOPE is what the law covers and where it stops, in subject matter, in time, in territory and in the acts reserved. Use Bishwanath Prasad for the objective and Novartis for the scope.
The nature of a patent
It is a CREATURE OF STATUTE, and nothing else. SECTION 2(1)(m) defines a patent as a patent for any invention GRANTED UNDER THIS ACT. There is no common law patent, no patent by use and no patent by reputation. An inventor who does not apply has no rights against a copier, however original his work, and that distinguishes patents sharply from copyright, which arises automatically, and from trade marks, which may be protected by passing off without registration.
It is a NEGATIVE right. SECTION 48 confers the exclusive right to PREVENT THIRD PARTIES from doing the listed acts. It does not confer a right to work the invention. A patentee whose invention improves on another's patent may be unable lawfully to practise his own, which is why section 91 provides for licences between interdependent patents and why cross licensing exists.
It is PROPERTY, and it is transferable. SECTION 68 contemplates assignment, mortgage, licence and the creation of other interests; section 69 provides for their registration; section 70 empowers the registered proprietor to deal with the patent. But it is property of a peculiar kind: created by grant, limited to TWENTY YEARS FROM FILING by section 53, territorial, and subject throughout to the State's power to license or take it.
It is a BARGAIN, and the consideration is disclosure. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, states it: the object of patent law is to encourage scientific research and industrial progress, and the PRICE OF THE MONOPOLY is the disclosure of the invention at the Patent Office, which after the expiry of the period of the monopoly passes into the public domain. Everything in section 10 about full description, the BEST METHOD and clear claims is the payment of that price.
The objective, which the Act states itself
Most statutes leave their policy to be inferred. The Patents Act does not. SECTION 83, inserted by the Patents (Amendment) Act, 2002, sets out the GENERAL PRINCIPLES APPLICABLE TO THE WORKING OF PATENTED INVENTIONS:
that patents are granted to ENCOURAGE INVENTIONS and to secure that they are WORKED IN INDIA ON A COMMERCIAL SCALE and to the fullest extent reasonably practicable WITHOUT UNDUE DELAY; that they are NOT granted merely to enable patentees to enjoy a MONOPOLY FOR THE IMPORTATION of the patented article; that the protection and enforcement of patent rights should CONTRIBUTE TO THE PROMOTION OF TECHNOLOGICAL INNOVATION and to the TRANSFER AND DISSEMINATION OF TECHNOLOGY, to the mutual advantage of producers and users and in a manner conducive to SOCIAL AND ECONOMIC WELFARE; that patents granted DO NOT IMPEDE PROTECTION OF PUBLIC HEALTH AND NUTRITION and should act as an instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development; that patents granted do not in any way PROHIBIT THE CENTRAL GOVERNMENT from taking measures to protect public health; that the patent right is NOT ABUSED and the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and that PATENTS ARE GRANTED TO MAKE THE BENEFIT OF THE PATENTED INVENTION AVAILABLE AT REASONABLY AFFORDABLE PRICES TO THE PUBLIC.
Section 83 is not decorative. It is the provision by which the compulsory licensing chapter is construed, and it is the reason Bayer Corporation v. Union of India, Bombay High Court, 15 July 2014, could hold that importation alone did not amount to WORKING IN THE TERRITORY OF INDIA on the facts before it.
How this law came to be, and why that fixes its objective
The objective in section 83 is not an abstraction. It is the distilled conclusion of a seventy year argument, and an answer that traces it reads as analysis rather than recitation.
Act VI of 1856 gave exclusive privileges for inventions, and the Indian Patents and Designs Act, 1911 put patents and designs into one statute administered by a Controller. That Act granted PRODUCT patents in every field, including medicines and food. By the 1950s the consequence was plain: something in the region of nine tenths of Indian patents were held by foreigners, most were not worked in India, and drug prices in India were among the highest in the world.
The Tek Chand Committee, 1950, and then the report of Justice N. Rajagopala Ayyangar, 1959, diagnosed the problem. Ayyangar's finding was that patents were being taken out in India not to work inventions here but to secure the Indian MARKET FOR IMPORTS, and to block Indian industry from a field. His recommendation was to deny product patents in the sensitive fields and to allow process patents only, so that an Indian manufacturer who devised a different route to the same medicine could make it.
The Patents Act, 1970, enacted that recommendation. SECTION 5, as it then stood, barred product patents for substances intended for use as FOOD, MEDICINE OR DRUG, and for substances produced by chemical processes; only the PROCESS could be patented, and even then for a term of five to seven years. That single provision built the Indian generic industry.
TRIPS, 1995, required the reversal, and India made it in three instalments. The 1999 amendment, made retrospective to 1 January 1995, created the MAILBOX under section 5(2) and exclusive marketing rights. The 2002 amendment made the term a uniform TWENTY YEARS under section 53, and inserted SECTION 83. The 2005 amendment repealed section 5 and brought in product patents in every field, but simultaneously inserted SECTION 3(d), the pre grant opposition in section 25(1) and the proviso to section 11A(7) protecting those who had already invested in making a mailbox substance.
So section 83 was written in 2002, in the interval between accepting the obligation and performing it, and it states the terms on which Parliament was prepared to perform. That is why it speaks of WORKING, of not permitting a MONOPOLY OF IMPORTATION and of PUBLIC HEALTH: these are Ayyangar's findings, carried forward into the TRIPS compliant Act. Novartis reads section 3(d) in exactly that light, describing the amendments as passed with the object of preventing EVERGREENING.
The scope of the law
Scope in SUBJECT MATTER. Positively, SECTION 2(1)(j): a NEW PRODUCT OR PROCESS INVOLVING AN INVENTIVE STEP AND CAPABLE OF INDUSTRIAL APPLICATION. Negatively, SECTION 3, seventeen classes that are not inventions at all, and SECTION 4, atomic energy. The negative list is where India's policy sits: Novartis AG v. Union of India, (2013) 6 SCC 1, held section 3(d) to be a SECOND TIER OF QUALIFYING STANDARDS requiring THERAPEUTIC EFFICACY of a new form of a known substance, and Ferid Allani v. Union of India, 2019 SCC OnLine Del 11867, held that section 3(k) bars only a computer programme PER SE and that a TECHNICAL EFFECT suffices.
Scope in TIME. TWENTY YEARS FROM THE DATE OF FILING under SECTION 53, with no extension of any kind, and in practice less, because the years of examination are subtracted from the patentee's own term. Renewal fees must be paid or the patent CEASES under section 53(2), subject to RESTORATION within eighteen months under sections 60 to 62.
Scope in TERRITORY. India alone. An Indian patent confers nothing abroad, and ARTICLE 4bis of the PARIS CONVENTION makes patents in different countries INDEPENDENT, which is why the same application refused in India was granted in some forty other countries in the Novartis matter. The Paris Convention and the PATENT COOPERATION TREATY, both acceded to by India on 7 DECEMBER 1998, ease the process of obtaining patents abroad but grant nothing.
Scope in the ACTS reserved. SECTION 48, and no further: MAKING, USING, OFFERING FOR SALE, SELLING AND IMPORTING a patented product, and USING a patented process and dealing in its DIRECT PRODUCT. SECTION 16 of the Act provides that no person is entitled to a patent otherwise than under the Act, and there is no residual right against free riding.
And the scope is cut down from within. SECTION 47, the standing conditions permitting government use and use MERELY FOR EXPERIMENT OR RESEARCH. SECTION 107A, the Bolar exemption for regulatory submissions and the importation of a patented product from a person DULY AUTHORISED under the law to produce and sell it. SECTIONS 84 TO 92A, compulsory licences. SECTIONS 100 TO 102, government use and acquisition. And SECTION 49, use on a foreign vessel, aircraft or vehicle temporarily in India.
The analysis: what kind of system these three produce
A system of STRICT ENTRY AND CONTINUING CONDITIONS. Entry is harder in India than in most jurisdictions, because of section 3 and the absence of a grace period for the inventor's own publication. Once granted, the patent remains subject to conditions no other property right carries: it must be WORKED, its working must be REPORTED in FORM 27 under section 146(2), now once every three financial years under the PATENTS (AMENDMENT) RULES, 2024, and it may be licensed out or revoked if it is not.
A system that prefers AMENDMENT AND LICENSING TO DESTRUCTION. The Controller is directed to require amendment rather than to refuse where he can, section 58 lets the High Court permit amendment even in a revocation proceeding, and section 84 offers a licence where the alternative is a monopoly not being used. Revocation and refusal are the last resorts.
And a system whose institutions have changed more than its text. The Act has not been amended by a Patents Amendment Act since 2005. What has changed is the machinery: the INTELLECTUAL PROPERTY APPELLATE BOARD was abolished by the TRIBUNALS REFORMS ACT, 2021 and appeals returned to the HIGH COURTS; the offences were decriminalised by the JAN VISHWAS (AMENDMENT OF PROVISIONS) ACT, 2023 with effect from 1 AUGUST 2024; and the Rules of 2016 and 2024 compressed the examination timetable and the working statement.
Conclusion. In its NATURE a patent is a CREATURE OF STATUTE, a NEGATIVE right to PREVENT others rather than a right to work, PROPERTY that is transferable under sections 68 to 70, and a BARGAIN whose consideration is the DISCLOSURE, as Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries explains. Its OBJECTIVE is stated by the Act itself in SECTION 83: to encourage inventions and secure that they are WORKED IN INDIA, not to enable a MONOPOLY OF IMPORTATION, to promote the transfer and dissemination of technology, not to impede PUBLIC HEALTH AND NUTRITION, not to be abused, and to make the benefit available at REASONABLY AFFORDABLE PRICES. Its SCOPE is bounded in SUBJECT MATTER by sections 2(1)(j), 3 and 4 as construed in Novartis AG v. Union of India and Ferid Allani v. Union of India; in TIME by the TWENTY YEARS from filing in section 53; in TERRITORY by India alone, patents being INDEPENDENT under Article 4bis of Paris; and in the ACTS reserved by section 48, cut down from within by sections 47, 49, 84 to 92A, 100 to 102 and 107A.
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