LLM Group 3 Law of Intellectual Property and Information Technology Law of Patents 2018 Question Paper with Solutions

What a patent is

Section 2(1)(m) defines a patent as a patent for any invention GRANTED UNDER THIS ACT, which tells the reader nothing, so the content comes from elsewhere. A patent is a STATUTORY MONOPOLY conferred by the State for a limited term. SECTION 48 gives the patentee the exclusive right to PREVENT third parties from making, using, offering for sale, selling or importing the patented product in India, or from using the patented process and dealing in the product obtained directly by it. SECTION 53 limits the term to TWENTY YEARS FROM THE DATE OF FILING. And the consideration the patentee gives is the DISCLOSURE required by section 10.

Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, states the bargain: the object of patent law is to encourage scientific research and industrial progress, and the price of the monopoly is the disclosure at the Patent Office, which passes into the public domain when the term ends.

Nothing was invented. Clause (c), the mere DISCOVERY of a scientific principle, an abstract theory or a living thing or non-living substance OCCURRING IN NATURE. Clause (d), the mere discovery of a NEW FORM of a known substance not resulting in the ENHANCEMENT OF ITS KNOWN EFFICACY, or of a new property or new use for a known substance, or of the mere use of a known process unless it results in a new product or employs at least one new reactant, the explanation deeming salts, esters, polymorphs, isomers, particle size and combinations to be the SAME SUBSTANCE. Clause (e), a MERE ADMIXTURE; clause (f), a MERE ARRANGEMENT OR RE-ARRANGEMENT of known devices working independently in a known way.

It cannot or should not work. Clause (a), FRIVOLOUS inventions and anything CONTRARY TO WELL ESTABLISHED NATURAL LAWS; clause (b), inventions contrary to PUBLIC ORDER OR MORALITY or seriously prejudicial to human, animal or plant life or health or to the environment; and SECTION 4, ATOMIC ENERGY within section 20(1) of the Atomic Energy Act, 1962.

Opposition proceedings

The Act provides TWO oppositions, one before grant and one after, and the Patents (Amendment) Act, 2005 substituted section 25 to create the present scheme.

Pre-grant opposition, section 25(1). Where an application has been PUBLISHED but a patent has NOT BEEN GRANTED, ANY PERSON may in writing REPRESENT BY WAY OF OPPOSITION to the Controller. The representation is considered only after a REQUEST FOR EXAMINATION has been filed, and since the PATENTS (AMENDMENT) RULES, 2024 the Controller must FIRST DECIDE ITS MAINTAINABILITY. The opponent may request a hearing. The Controller may refuse the application, require amendment, or grant the patent, and his order is appealable.

Post-grant opposition, section 25(2). At any time after the GRANT but before the expiry of TWELVE MONTHS from the date of PUBLICATION OF GRANT, any PERSON INTERESTED may give notice of opposition. Section 25(3) requires the Controller to notify the patentee and to constitute an OPPOSITION BOARD of three examiners, one of whom is chairman, which examines the notice and the evidence and submits a RECOMMENDATION with reasons. Section 25(4) requires the Controller, after hearing the patentee and the opponent and considering the recommendation, to order maintenance, amendment or REVOCATION of the patent.

The grounds, which are all but identical for both. Wrongful obtaining; PRIOR PUBLICATION in India or elsewhere; PRIOR CLAIMING in a specification of earlier priority; PUBLIC KNOWLEDGE OR PUBLIC USE IN INDIA before the priority date; OBVIOUSNESS and want of inventive step; that the subject is NOT AN INVENTION or NOT PATENTABLE under the Act; INSUFFICIENCY of description; failure to disclose the information required by SECTION 8 or furnishing false information; in a convention application, that it was not made within TWELVE MONTHS of the first foreign application; non-disclosure or wrong mention of the SOURCE AND GEOGRAPHICAL ORIGIN of biological material; and ANTICIPATION BY TRADITIONAL KNOWLEDGE of any local or indigenous community in India or elsewhere.

Conclusion. A PATENT is a statutory monopoly conferred by SECTION 48 for TWENTY YEARS FROM FILING under section 53, paid for by the disclosure section 10 requires, as Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries explains. PATENTABLE inventions are those satisfying section 2(1)(j), that is NEW, INVOLVING AN INVENTIVE STEP and CAPABLE OF INDUSTRIAL APPLICATION, product patents being available in every field since 1 January 2005. NOT PATENTABLE are the seventeen categories in SECTION 3, excluded because nothing was invented, because the thing cannot or should not work, because it is not the kind of subject patents govern, or by policy about medicine, agriculture and living matter, together with ATOMIC ENERGY under section 4, Novartis AG v. Union of India and Ferid Allani v. Union of India supplying the modern construction of clauses (d) and (k). OPPOSITION lies twice: PRE-GRANT under section 25(1), open to ANY PERSON after publication and before grant and decided by the Controller, whose maintainability is now decided first; and POST-GRANT under section 25(2), open only to a PERSON INTERESTED within TWELVE MONTHS of the publication of grant and decided by the Controller on the recommendation of an OPPOSITION BOARD, with revocation under section 64 in the HIGH COURT as the further route.