B.A.LL.

B (SEMESTER IX)

INTELLECTUAL PROPERTY RIGHTS

History of Patent

PAPER NUMBER 9.45

Submitted To: Submitted By:

S.S. JAIN SUBODH LAW COLLEGE

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 DECLARATION

I, Prashant Choudhary, do hereby declare that, this project topic “History of Patent” is an
outcome of the research conducted by me under the guidance of Ms.Raveena Khuteta (Asst.
Prof. of Intellectual property law) at S.S. Jain Subodh Law College in fulfilment for the
award of the degree of B.A.LL.B., at the University of Rajasthan.
I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, this work has not been submitted either in whole or in part, for any
degree or equivalent in any other institution.

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 CERTIFICATE

This is to certify that Prashant Choudhary, student of B.A. LLB IX Semester, of S.S. Jain
Subodh Law College, Jaipur has completed his project on “History of Patent“ under the
guidance of Ms.Raveena Khuteta, Assistant Professor, S. S. Jain Subodh Law College.
This project is an original, independent work to the best of my knowledge and has not been
published anywhere and has been pursued solely for academic interest.

SIGNATURE OF THE FACULTY

Ms.Raveena Khuteta

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 ACKNOWLEDGEMENT

This project is incomplete without thanking few people who have been my pillar of support
throughout this work. I owe my gratitude to all those people who have made this project
possible.

I would like to express my deep and sincere gratitude to my Madam, Ms.Raveena Khuteta,
her continuous support. She has always been there to listen, guide and help me out and has
been constantly monitoring the progress of my work and has showed me the different ways to
approach a research problem and also the need to be persistent to accomplish any goal.

I am also obliged to acknowledge the administration for providing a wonderful library which
is a storehouse of knowledge and also providing for the invaluable electronic resources
without which no such research is ever possible.

Last but not the least I wish to my heartfelt gratitude towards my parents for their
unconditional support, strength and encouragement.

Finally, I would like to thank everybody who was important to the successful completion of
my project, as well as expressing my apology that I could not mention everyone personally.

Prashant Choudhary
Semester - IX

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 TABLE OF CONTENT

1) Declaration
2) Certificate
3) Acknowledgement
4) Research Methodology

 Statement of Problem
 Objective
 Research Design
 Sources of Data

5) Introduction
6) History of Patent
7) What is Patentable ?
8) What is not Patentable?
9) Conclusion
10) Bibliography

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Introduction

Meaning of patent

A patent is an exclusive right granted by the Government to the inventor to exclude others to
use, make and sell an invention is a specific period of time. A patent is also available for
improvement in their previous Invention. The main motto to enact patent law is to encourage
inventors to contribute more in their field by awarding them exclusive rights for their
inventions. In modern terms, the patent is usually referred to as the right granted to an
inventor for his Invention of any new, useful, non-obvious process, machine, article of
manufacture, or composition of matter. The word “patent” is referred from a Latin term
“patere” which means “to lay open,” i.e. to make available for public inspection. There are
three basic tests for any invention to be patentable:

 Firstly, the invention must be novel, meaning thereby that the Invention must not
be in existence. 
 Secondly, the Invention must be non- obvious, i.e. the Invention must be a
significant improvement to the previous one; mere change in technology will not
give the right of the patent to the inventor. 
 Thirdly, the invention must be useful in a bonafide manner, meaning thereby that
the Invention must not be solely used in any illegal work and is useful to the world
in a bonafide manner.

An invention considered as new if, on the date of filing the application, any such invention is
not known to the public in any form, i.e. oral, writing, or any other form. Anything shall not
be termed as inventive if such a thing is already known to the public domain. The patent has a
limited term of 20 years, which is counted from the date of filing of the patent application. A
patent is a territorial right. Thus it can only be applied in the country where it has been
granted. A patent is a territorial right. Thus it can only be applied in the country where it has
been granted. Therefore, any legal action against infringement or infringement of patent
rights can only be taken in that country. To obtain patent protection in different countries,
each country must apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to
file an international patent application in which a patent can be filed through a single patent
application in a large number of countries. However, the PCT of a patent remains
discretionary of the individual patent office only after the application is filed.

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Under the Indian patent law, a patent can be obtained only for an invention which is new and
useful. The invention must relate to the machine, article or substance produced by a
manufacturer, or the process of manufacture of an article. A patent may also be obtained for
innovation of an article or of a process of manufacture. In respect to medicine or drug and
certain classes of chemicals, no patent is granted for the substance itself even if it is new, but
the process of manufacturing and substance is patentable. The application for a patent must
be true and the first inventor or the person who has derived title from him, the right to apply
for a patent being assignable.

Some inventions cannot be patented. In the European Patent Convention (EPC) law there is
the list of non-patentable subject-matter which includes methods of medical treatment or
diagnosis, and new plant or animal varieties. Further information on such fields can be
obtained from a patent attorney. Nor many patents be granted for inventions whose
exploitation would be contrary to public order or morality (obvious examples being land-
mines or letter-bombs).The following are not regarded as inventions, discoveries,
innovations, scientific theories and mathematical methods, aesthetic creations, such as art or
literature works or art of writing, schemes, rules and methods for performing mental acts,
playing games or doing business, presentations of information, computer software.

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History of Patent

Patents have their origins in 15th century Venice where the Republic of Venice held that new
inventions “had to be communicated to the Republic to obtain a right to prevent others from
using them”.

In Britain, Henry VI granted John of Utynam a Flemish born artist exclusive 20-year
monopolistic rights to a method of making stained glass. Under Queen Elizabeth’s reign
patents were issued for knives, starch, iron paper, and soap. Patent applications were also an
effortless revenue for the crown. But sometimes patents were issued for inventions that
weren’t even new this led to a rise in corruptive practices. Following a massive protest from
the public, King James 1 banned all monopolies in 1610.

Statute of Monopolies-

This statute was enacted in 1624 in England stating that patents could be issued only for new
inventions and they should not be detrimental to the public interest. It introduced the
principles of novelty, public interest, and limited time and is a precedent for trademark laws
even today.

In 1796 James Watt issued a patent for his steam engine thus establishing a principle that
patents could be granted for making unobvious improvements in an already existing machine.

By the 18th century under John Locke’s influence patents started to be viewed as Intellectual
Property Rights.

During the mid-19th century during the Industrial Revolution, the preexisting British Patent
System seemed obsolete hence the Patent Law Amendment was enacted in 1852 to make
several improvements. It established a Patent office to centralize the process and an officer
was appointed to investigate the novelty of each applicant’s product.

Soon countries like the USA, New Zealand, and Australia with common law heritage began
to follow suit. 

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In 1641 North America granted its first patent to Samuel Winslow for a new method of
making salt. State-level patenting laws emerged by the late 18th century and centralized
bypassing the federal law, Patent Act of 1790. They also published a report listing all the
existing patents which were available in all public libraries to ensure no one applied for
already patented items thus reducing the number of applications dramatically.

Paris Convention-

This was the first of many international treaties to protect intellectual property all over the
world. It was signed on 20th March 1883. It guaranteed equal treatment of all its member
states. It initially had only 20 members but now is followed all over the world. India joined
the Paris convention in 1999.

European Patent Convention-

This convention has been operation since June 1978 and was a culmination of the patent laws
of all its then member states. It is a centralized patent system for the European countries and
has a head office in Munich. It provides the benefit of filing a single application for a patent
that will be relevant in all its European country members that the applicant mentions.

Patent Cooperation Treaty-

This has been operating since 1978 and has 108 member states. However, the PCT just does
an international search and an international preliminary examination for the applicant; it does
not grant a patent. The authority to grant a patent still resides in the respective National
Patent office.

TRIPS agreement –

This treaty acts as a model for most developing countries in the 20th century. The Trade-
Related Aspects of Intellectual Property (TRIPS) was formed in 1994 and has more than 120
country members today. It has improved legal protection for patents worldwide. It’s most
significant contribution is imposing limits on compulsory licenses.

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Patent Law in India

The first patent was enacted in 1856, it gave inventors exclusive privileges fo 14 years. It was
based in the UK act Several amendments were made over the years. The Patterns and Designs
Protection Act,1882 and Protections of Inventions Act,1883 were replaced by the Indian
Patents and Designs Act,1911, and all former acts were eliminated. Many amendments were
made later on to incorporate arrangements with the UK and other countries, additional
patents, governments using inventions, and increasing the term period to 16 years.

After Independence, a committee headed by retd. Judge Dr. Bakshi Tekchand was made and
the act was amended again in 1950. The Ayyanger report was submitted in 1989 suggesting
radical changes. The Indian Patents Act,1970 came into force in 1972. It precisely defined
many terms like invention and declaration of the invention. It prohibited patenting food and
agrochemicals, product patents for drugs (medicines), and put forward stringent requirements
for the description of an invention. It also let innovations that were patented elsewhere be
freely copied and marketed in India. The act was not detrimental to MNC’s and did not
comply with the global patent system.

Since India was a member of the WTO, it had to abide by the TRIPS agreement. A concept
called Exclusive Marketing Rights (EMR) was introduced as per which international
pharmaceuticals could market their product for a period of five years. this was incorporated
in later amendments.

The Patents amendment act in 2005 tried to incorporate more of the global goals like
mandating licensing, product patents in all fields of technology like food drugs and
chemicals.

The Final Amendment was in 2019 intending to bring more transparency and to include a
framework for technological innovations. It seeks to make the procedure simpler and also
includes provisions for easy registration of computer programs.

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What is Patentable?

As per Section 2(j) of the act, ‘invention’ is defined as a new product or process involving an
inventive step capable of industrial application.1

For something to be patentable it has to meet the following criteria:

 has to be novel

 should not be an obvious progression i.e. it has to make a significant improvement

 should have industrial applicability and not detrimental to society

 should not be inventions that cannot be patented as per Section 3 and 4 of the
Patent Act, 1970.
Although medicine cannot be patented the process used for manufacturing can be patented.

What is not Patentable?

Inventions which are contrary to the basic laws of nature. Discoveries of nature too cannot be
patented. This is why Newton could not patent his laws on gravity since he discovered them
but Edison could register his manmade product since he invented it.

Agricultural, medical, plants, and animals cannot be patented. Inventions related to atomic
energy, literary work that is subject to copyright is not patentable either. Discovering
something by merely rearranging admixing something is also not patentable2

Application for a patent in India

As per the Patent Act, 1970 the patentee has to be either the inventor himself or an assignee
or a legal representative. Patents are granted on a first-come-first-serve basis i.e. whoever
applies first not who invented it first. Foreign nationals can also apply for patents in India.
1
P.S. Sangal and K. Punnaswami, Intellectual property law ed. 1994.

2
https://cyber.harvard.edu

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One can apply along with the prescribed form and fee in the domicile territory of the
patentee.

The application should have the provisional (brief) and the complete specification. The latter
should also include their claim and should be filed within 12 months of application.

After examining the application, the Patent Office will give a few suggestions. If the
Controller of the Patents is satisfied then he will accept and the complete specification will be
published in the official gazette in case anyone wants to object until which it will be sealed.
After 3 months if no one opposes then the patent will be granted with respect to the product
being patented. A patent can also be renewed and in case of any developments, a patent
called a patent of addition may be applied which will be added to the main patent.

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Conclusion

As iterated in the Supreme Court case, Bishwanath Prasad Radhey Shyam v. Hindustan Metal
Industries patents are issued to encourage innovation and scientific research.

An inventor’s monopoly over his design will be protected for a period of 20 years after which
it will enter the public domain.

Section 48 of the act elaborates on the statutory rights granted to the patentee. Although
actions such as government use, using a patented product for experiments, etc. are exceptions
under the act.

Patents are very important in this contemporary world where everyday something new is
being invented every day. India, however, is very lenient for regulating patents dispiriting
inventors, and also the application procedure is long and outdated. Significant changes have
been made especially in the 90s in order to comply with the world’s standards but more
improvement is needed.

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Bibliography

Book Refer:-

1. P. Narayaran, Intellectual Property law, ed. 1997.

Website Refer:-

https://cyber.harvard.edu

https://blog.ipleaders.in

http://www.legalserviceindia.com

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