PROJECT REPORT OF INTELLECTUAL

PROPERTY RIGHTS

PROJECT TOPIC: THE LAW ON PATENTS

Submitted to: Submitted by:

Rhythm Jain
Professor, Intellectual Property Rights B.com LL.B (Hons.)
Sec-D
10th Semester
Roll No. 182/17

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB

UNIVERSITY CHANDIGARH.

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 ACKNOWLEDGEMENT

I would like to express my sincere respect and gratitude to my subject teacher who supported
me and has given her valuable suggestions from time to time which were beneficial to me for
the completion of this project on time. I came to know about so many new things and all the
credit goes to my professor who gave me the golden opportunity to do this wonderful project
on the topic ‘The Law on Patents’. The exclusive guidance and supervision by my professor
through the course of the project helped me a lot.

I would also like to thank my parents for their motivation and support. I must
thank my class mates for their timely help and support for the completion of this project.

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 TABLE OF CONTENTS

S.NO. TOPIC P.NO.

1. PREFACE 5-7

2. INTRODUCTION TO PATENT 8-12

3. THE PATENT ACT, 1970 13-14

4. PATENTABLE & NON-PATENTABLE INVENTION 15-19

5. COVID VACCINE & PATENT WAIVER 20-22

6. CONCLUSION 23

7. REFERENCES 24

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I. Preface
1.1 THE CONCEPT

Intellectual property law regulates the creation, use and exploitation of mental or creative
labor.1 Property can be classified into the following categories-

PROPERTY

TANGIBLE INTANGIBLE
(Movable & Immovable) (Intellectual Property)

Intellectual property (IP) is a term referring to creations of the intellect for which a monopoly
is assigned to designated owners by law. Some common types of intellectual property rights
(IPR) are trademarks, copyright, patents, industrial design rights, etc. While intellectual
property law has evolved over centuries, it was not until the 19th century that the term
intellectual property began to be used, and not until the late 20th century that it became
commonplace in the majority of the world.2 Simply put, the creative genius of human being
creates intellectual property; which in turn, when properly exploited, can earn wealth. Since,
it is essentially the creation of mind it is called intellectual property.

1
Bentley L, Intellectual Property Law, Oxford University Press, Great Britain, 3rd Edition, 2001, P. 1
2
Available at, https://en.Intellectual_property laws/, Last Viewed on 2ND June, 2022 at 21:30.
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1.2 PROTECTION FOR INTELLECTUAL PROPERTY

Every human endeavor which promotes economic, social, scientific and cultural development of
society must be encouraged and the creator must be suitably rewarded by affording legal
protection to his intellectual creation. Intellectual property is an intellectual work, produced by
the intellect of human brain. The person who creates an intellectual piece of work owns it like
any other tangible property like land or movable goods. The owner of intellectual property has
exclusive right over his intellectual property. No one can make use of intellectual property
without the consent of the owner of the intellectual property. Intellectual property law deals with
the rules for securing and enforcing legal rights to inventions, designs, and artistic works. Just as
the law protects ownership of personal property and real estate, so too does it protect the
exclusive control of intangible assets. The purpose of these laws is to give an incentive for people
to develop creative works that benefit society, by ensuring they can profit from their works
without fear of misappropriation by others and this Intellectual property is the product of the
human intellect including creativity concepts, inventions, industrial models, trademarks, songs,
literature, symbols, names, brands etc. Intellectual Property Rights do not differ from other
property rights. They allow their owner to completely benefit from his/her product which was

initially an idea that developed and crystallized3.

3
J.P. Mishra, An Introduction to Intellectual Property Rights (3rd ed. Cent. Law Publications 2012).

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According to the agreement on Trade Related Intellectual Property Rights (TRIPs),
agreement between the members of the World Trade Organisation (WTO), to which India is
also signatory, the intellectual property law includes law relating to:

1) Copyright and related rights;

2) Trademarks, trade names and service marks;
3) Geographical indications;
4) Industrial Designs;
5) Layout Designs of Integrated Circuits;
6) Undisclosed information.

Intellectual property protection is the key factor for economic growth and advancement in the
high technology sector. They are good for business, benefit the public at large and act as
catalysts for technical progress4.

This is a branch of the law which protects some of the finer manifestations of human
achievement.5

4
Prof. Meenu Paul, Intellectual Property Rights (5th ed. Allahabad Law Agency 2014).
5
Bhandari M.K., Law relating to Intellectual Property Rights, Central Law Publications, Allahabad, 2nd
Edition, 2010, P. 2

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II. Introduction to Patent
2.1 WHAT IS A PATENT?
A Patent is a monopoly right granted to person who has invented a new and useful article or
an improvement of an existing article or a new process of making an article.6 Therefore, a
patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a
limited period of time in exchange for detailed public disclosure of an invention. An
invention is a solution to a specific technological problem and is a product or a process.
Patents are a form of intellectual property.

In general patent means "exclusive right to the first and true inventor to make, use or vend his
invention." The term "patent" has been derived from Latin word "patente" which means to
open.

A patent is a form of intellectual property that gives its owner the legal right to exclude others
from making, using, selling and importing an invention for a limited period of years, in
exchange for publishing an enabling public disclosure of the invention. In most countries
patent rights fall under civil law and the patent holder needs to sue someone infringing the
patent in order to enforce his or her rights. In some industries patents are an essential form of
competitive advantage; in others they are irrelevant7.

8
In Raj Parkash v. Mangat Ram , the Hon'ble Delhi High court explained the effect of grant of
patent is quid pro quo i.e. the knowledge disclosed to the public. Quo is the monopoly granted.

After the Amendment of 2002, the definition of patent u/s 2[1(m)] states- “patent means a
patent granted under this Act.”

After the Amendment of 2005, the definition of patent u/s 2[1(m)] states- “Patent means a
patent for any invention granted under this Act.”

Therefore, patent means exclusive right conferred upon the patentee with respect to an
invention.

6 Available at, http://www.patentindia.org/patent.htm, Last Accessed on 4th June, 2022 at 21:30.

7
WIPO Intellectual Property Handbook: Policy, Law and Use.
8
AIR 1978 Del. 1.

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Patents can be either process patents or product patents.
A product patent ensures that the rights to the final product is protected, and anyone other
than the patent holder can be restrained from manufacturing it during a specified period, even
if they were to use a different process. A process patent enables any person other than the
patent holder to manufacture the patented product by modifying certain processes in the
manufacturing exercise.

In Telemecanique & Controls (I) Ltd. v. Schneider Electric Industries SA,9 it was held that
the patent created a statutory monopoly protecting the patentee against any unlicensed user of
the patented device. A monopoly of the patent is the reward of invention.
India moved from product patenting to process patenting in the 1970s, which enabled India to
become a significant producer of generic drugs at global scale, and allowed companies like
Cipla to provide Africa with anti-HIV drugs in the 1990s. But due to obligations arising out
of the TRIPS Agreement, India had to amend the Patents Act in 2005, and switch to a product
patents regime across the pharma, chemicals, and biotech sectors.10

2.2 HISTORY OF PATENT LAWS IN INDIA

In 1300s, the first person who found resources in the Alps dictated property rights for mining,
timber and water. As competition progressed special privileges were granted for useful
creation. In 1409, first patent was granted to a German for the construction of a model
mill. A monopoly by the British was not granted to sell playing cards due to obviousness.
The first English patent was granted for a period of 20 year to John of Utynam on making
stained glass. Meanwhile, the French advanced the system by registration and examination.
In the United States, a patent was granted for a grain elevator ‘hopper boy’ to Oliver Evans.

In the Indian context, in 1856, the Act VI on protection of inventions based on the British
Patent Law of 1852 was established. During this period certain privileges were granted to
inventors of new manufacturers for a period of 14 year. In 1859, the act was modified as Act
XV in which making, selling, using of inventions in India and authorizing others to do so for
14 year from the date of filing the specification. In 1872, the act was re-named as The Patents
and Design Protection Act, in 1883 as The Protection of Inventions Act, in 1888 consolidated
as The Inventions and Designs Act and in 1911 as The Indian Patents and Designs Act. The

9
2002 (24) PTC 632 (Del) (DB).
10 Available at https://indianexpress.com/article/explained/explained-ip-waiver-for-covid-vaccines-
7304992/, Last Visited on 4th June, 2022 at 13:34.
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Indian Patents and Designs Act, 1911, (Act II of 1911) replaced all the previous Acts. This
Act brought patent administration under the management of Controller of Patents for the first
time. This Act was further amended in 1920 to enter into reciprocal arrangements with UK
and other countries for securing priority11.

After Independence, it was felt that the Indian Patents & Designs Act, 1911 was not fulfilling
its objective. It was found desirable to enact comprehensive patent law owing to substantial
changes in political and economic conditions in the country. Accordingly, the Government of
India constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek Chand, a
retired Judge of Lahore High Court, in 1949 to review the patent law in India in order to
ensure that the patent system is conducive to the national interest. Based on the
recommendation of the Committee, the 1911 Act was amended in 1950 (Act XXXII of 1950)

in relation to working of inventions and compulsory licence/revocation12.

In 1957, the Government of India appointed Justice N. Rajagopala Ayyangar Committee to

examine the question of revision of the Patent Law and advise government accordingly. The
report of the Committee, which comprised of two parts, was submitted in September, 1959.
The first part dealt with general aspects of the Patent Law and the second part gave detailed
note on the several clauses of the lapsed bills 1953. The first part also dealt with evils of the
patent system and solution with recommendations in regards to the law. The committee
recommended retention of the Patent System, despite its shortcomings. This report
recommended major changes in the law which formed the basis of the introduction of the
Patents Bill, 1965. This bill was introduced in the Lok Sabha on 21st September, 1965, which
however lapsed. In 1967, again an amended bill was introduced which was referred to a Joint
Parliamentary Committee and on the final recommendation of the Committee, The Patents
Act, 1970 was passed. This Act repealed and replaced the 1911 Act so far as the patents law
was concerned. However, the 1911 Act continued to be applicable to designs. Most of the
provisions of the 1970 Act were brought into force on 20th April 1972 with publication of the

Patent Rules, 1972.13

11
J.P. Mishra, An Introduction to Intellectual Property Rights (3rd ed. Cent. Law Publications 2012).
12
Dr. V K Ahuja, Law Relating to Intellectual Property Rights (3rd ed. Lexis Nexis 2017).
13 Available at, http://www.mondaq.com/india/x/54494/Patent/Patent+Law+in+India, Last Accessed
on 5h June, 2022 at 21:45.

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2.2.1 Features of the Patent Act, 1970

1. The Act of 1970 provides for the grant of patents to encourage inventions and secure
the inventions that are worked in India on a commercial scale and to the fullest extent
reasonably practicable, without undue delay.
2. The Act accords special status to patents relating to medicines, food items and
chemicals. No product patent can be granted relating to medicines, food items and
chemicals only the process of manufacturing such products can be patented.

The Act 1970 was amended in 1999 by the Patent (Amendment) Act, 1999. Establishment
of WTO in 1995 and adoption of Trade Related Intellectual Property Rights (TRIPs) heralded
a revolutionary change in IPRs regime worldwide. India having become founder member
incurred obligation to bring its IPR legal regime in tune with IPR obligations as envisaged in
TRIPs within 10 years of time frame. Thus, the IPR Amendment Act, 1999 inserted a new
chapter in the Act, 1970 (S. 24A to 24F) which deals with exclusive marketing rights to sell
or distribute certain articles or substances in India.

2.2.2 Features of the Patent (Amendment) Act, 2002

1. The new definition of the term invention- ‘a new product or process involving an
inventive step and capable of industrial application’ came into force, to comply with
the TRIPs agreement.

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 2. Patent protection extended to a uniform term of 20 years.
3. Discovery of any living thing or non living substance occurring in nature has been
made non patentable.
4. The provision of ‘licenses of right’ was abolished.

2.2.3 Features of the Patent (Amendment) Act, 2005

1. Product patents to be issued in areas like drugs, food and chemicals, etc.
2. Mere discovery of new form of known substance has been made non patentable
invention.
3. Provision for enabling the grant of compulsory licence for export of patented
medicines to countries which have insufficient or no manufacturing capacity to meet
public health emergencies such as HIV, AIDS.

2.3 OBJECT OF THE PATENT LAW

Further, S.83 of the Patent Act, 1970 lays down the aims and objectives of granting patent.
Law presumes that patented invention will be exploited for the benefit of general public. For
which it provides the following considerations-
1. that patents are granted to encourage inventions,
2. that the protection and enforcement of patent rights contribute to the promotion of
technological innovation,
3. that the patent right is not abused by the patentee or person deriving title or interest on
patent from the patentee,
4. that patents are granted to make the benefit of the patented invention available at
reasonably affordable prices to the public.

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III. Indian Patent Act, 1970
The Patents Act, 1970 is a landmark in the industrial development of India. The basic
philosophy of the Act is that patents are granted to encourage inventions and to ensure that
these inventions are worked on a commercial scale without undue delay.

The Patents Act, 1970, came into force on 20th April, 1972. It extends to the whole of India.

3.1 SILENT FEATURES OF ACT, 1970

Some of the silent features of the Act of 1970 are as follows:-

1) Elaborate definition of invention.

2) No product patents for substances intended for use as food, drugs and medicines
including the product of chemical processes.
3) Codifying certain inventions as non-patentable.
4) Furnishing of information made mandatory for foreign application.
5) Provisions for secrecy of inventions relevant for defence purposes.
6) Reduction in the term of patents relating to process in respect of substances capable of
being used as food or as medicine or drugs.
7) Provision for non-working as ground for compulsory licences, licences of right, and
revocation of patents.
8) Additional powers to Central Government to use an invention for purposes of
government including Government undertakings.
9) Preventing the abuse of patent rights by making restrictive conditions in licence
agreements/contract as void.
10) Act of 1970 further provides for international agreements which India may make
with the convention counties which afford to the citizens of India similar privileges as
are granted to their own countries.

Section 2 (1) (m) of the Act, 1970 defines "patent" as a patent for any invention granted
under this act.

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3.2 INVENTION
Section 2(1) (j) defines "Invention" as “new” product or process involving an “inventive
step” and “capable of industrial application”.

According to this definition, patent may be granted to an invention of:

a) new
b) product or process;
c) involves an inventive step
d) capable of industrial application
a) New
"New invention" means any invention or technology which has not been anticipated by
publication in any document or used in the country or elsewhere in the world before the
date of filing of patent application with complete specification, i.e., the subject matter has
not fallen in public domain or that it does not form part of the state of the art;14

b) Patent to an invention of “product” or “process”

Patent may be granted to an invention with respect to the:
I. product produced as an article or substance, or
II. process by which that article or substance is produced.

c) Involves an inventive step

"Inventive step" means a feature of an invention that involves technical advance as
compared to the existing knowledge or having economic significance or both and that
makes the invention not obvious to a person skilled in the art.15 In CTR Manufacturing

Indus Ltd. v. Sergi Transformer Explosion Prevention Tech. Pvt. Ltd.16 it was held that
even a slight alteration or improvement may yield a dramatically important result and
might be the result of very great ingenuity. So the degree of inventiveness is irrelevant.
d) Capable of industrial application
"Capable of industrial application", in relation to an invention, means that the invention is
capable of being made or used in an industry;17

14
Section 2(1)(l), The Patents Act, 1970.
15
Section 2(1)(ja), The Patents Act, 1970.
16
2016 (65) PTC 262 (Bom), p.288.
17
Section 2(1)(ac), The Patents Act, 1970.

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IV. Patentable & Non-Patentable
Inventions
4.1 THINGS THAT CAN BE PATENTED

S. 2(j) of the Patent Act, 1970 defines invention as “invention means a new product or
process involving an inventive step and capable of industrial application.” It further states
that: inventive step means a feature of invention that involves technical advance as compared
to the existing knowledge or having economic significance or both and that makes the
invention not obvious to a person skilled in the art.”18

4.1.1 Attributes of Patent

A. Novelty- Novelty means something new. A new invention or technology as per S. 2 of the
Patent Amendment Act means any invention or technology which has not been anticipated by
publication in any document or used in the country or elsewhere in the world before the date of
filing of patent applications with complete specification, which the subject matter has not fallen in
public domain or that it does not form part of the state of art. Thus, in other words the element of
novelty or newness in an invention is dependent upon the state of prior art i.e. the existing
knowledge and similar inventions already known in a particular field. There would be no novelty
if there has been prior publication and prior use of an identical invention.

For instance the grant of patent in USA to turmeric products was challenged by the Indian
Council of Science and Industrial Research (CSIR) on the ground that there was no novelty in
the invention. The use of turmeric was in our country since ages. The CSIR was successful in
getting the grant of patent to American Company revoked.19

In Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal20 it was held that “the two
features necessary for the validity of a patent are novelty and utility.”

The case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries21 is considered
to be the most important case in interpretation of inventive step in the Indian jurisdiction.

18
S. 2(j)(a), The Patent Act, 1970
19 Available at http://www.pfc.org.in/ach/novel.htm, Last Accessed on 2 June, 2022 at 17:30.
20
AIR 1936 Bom. 99.
21
AIR 1978 SC 234.

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Though the case was decided in 1978, the principles laid down in the case are followed even
today and have been codified in the Indian Patent Act.

Facts of the Case: The plaintiff (Hindustan Metal Industries) in this case claimed to have
invented a device and method for manufacturing utensils, introducing improvement,
convenience, speed, safety and better finish, in the old prevalent method which was fraught
with risk to the workers, in as much as the utensils used to fly off from the headstock, during
the manufacturing process. The plaintiff got the invention patented, as an assignee, under the
Indian Patent and Designs Act, 1911. Later, the plaintiff learnt that the defendant
(Bishwanath Prasad Radhey Shyam) was using and employing the method under the former’s
patent. The plaintiff served a notice upon the defendant asking him to desist from infringing
the plaintiff’s patent and further claim damages for Rs.3000. The validity of the patent was
challenged by defendants on the ground of lack of novelty and inventive step and also filed a
counter claim praying for the revocation of the plaintiff’s patent on the same ground. A
division bench of a district court of Allahabad started its analysis of inventive step and after
considering the prior art in the case, stated that the patented invention was merely an
application of an old invention, known for several decades before the plaintiff’s patent, which
was no more than a workshop improvement. The court as a result had issued the petition for
revocation on the patent. The plaintiff made appeals to a division bench of the High Court,
where the appellate bench concluded that the method of manufacture did not involve any
inventive step or novelty. Furthermore, as the invention was publicly used by the patent
holder before the date of filing of the patent application, the Court observed that the novelty
of the invention was negated. In the light of its analysis, the court concluded that the

invention lacked novelty and inventive step.22 Thus the court laid down that an invention to
be patentable needs to be new or novel and result in new product or process which involves
an inventive step and which is not in prior public knowledge.

B. Non-obviousness- A patent may not be obtained though the invention is not identically
disclosed or described, if the differences between the subject matter sought to be patented and the
prior art are such that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which the said subject matter
pertains. In addition to novelty, potentiality is to depend, upon the ‘non-obvious’ nature

22 Available at http://www.invntree.com/blogs/determination-obviousnessinventive-step-indian-approach,
Last Accessed on 4th June, 2022 at 11:30.
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of the ‘subject-matter sought to be patented’ to a person having ordinary skill in the pertinent
art.

Patent out not to be granted for every trivial advancement. Minor improvements were
considered as reflecting the work of a skillful mechanic for which protection ought not be
granted. It is often difficult to determine whether a given improvement is a mere mechanical
advance or the result of the exercise of the creative faculty amounting to a meritorious
invention. The fact that the invention seems simple after it is made does not determine the
question.

A test to determine whether a document can negate the existence of inventive step is as follows:

Had the document been placed in the hands of a competent craftsman (or engineer as
distinguished from a mere artisan), endowed with the common general knowledge at the 'priority
date', who was faced with the problem solved by a patentee but without knowledge of the
patented invention, would he have said, "this gives me what I want". To put it in another form:
"was it for practical purposes obvious to a skilled worker, in the field concerned, in the state of
knowledge existing at the date of the patent to be found in the literature then available to him,

that he would or should make the invention the subject of the claim concerned?”23

In Novartis v. Union of India24, Novartis filed an application for grant of patent for chemical
compound called Imatinib Mesylate which is a therapeutic drug for chronic myeloid leukemia
and certain kinds of tumours. The Assistant Controller of Patents and Designs heard all the
parties and rejected the appellant’s (Novartis) application for grant of patent to the subject by
five separate reasons. The Assistant Controller held that the invention claimed by the
appellant was anticipated by prior publication, i.e., the Zimmermann patent; that the invention
claimed by the appellant was obvious to a person skilled in the art in view of the disclosure
provided in the Zimmermann patent specifications. The Supreme Court of India rejected
Novartis patent plea on April 1, 2013.

Here, obviousness is judged based on the hypothetical construct of a "person of ordinary skill
in the art". The person of ordinary skill in the art must:

i. Belong to the relevant field.

23
Khanna Vanita, Intellectual Property Rights, Mewar University Press, New Delhi, 2016, p. 74
24
AIR 2013 SC 785.

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 ii. Look at the prior art from a position of his personality, considering his/her interest in
risk taking.
iii. Be well aware of the fact that even a small structural change in a product or in a
procedure can produce dramatic functional changes.

C. Industrial application- An invention must be capable of ‘industrial application’ for grant

of patent. The patent protection is not available to purely abstract or intellectual creation. The
use may not be for profit and hence it includes agricultural use also. Capable of industrial
application doesn’t require proof of actual use. The potential to be made or used in industry is
sufficient evidence for proof of industrial application.25

The inventions which are not so useful are protected in some countries as ‘utility model’ but
this concept is not recognized in India.

4.2 INVENTIONS WHICH ARE NOT PATENTABLE

They are of the following types-

i. Inventions not deemed to be inventions (Sec.3)

ii. Inventions relating to atomic energy (Sec.4)

4.2.1 Inventions not deemed to be inventions S.3

a) Frivolous; or
b) Immoral or injurious to public health, animal or plant life; or
c) Discovery of an abstract theory; or
d) Discovery of any living or non-living substance occurring in nature; or
e) Discovery of new property of a known substance; or
f) A mere duplication or re-arrangement of the known device; or
g) A mere admixture resulting only in the aggregation of the properties of the
component; or
h) A method of agriculture or horticulture; or
i) Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic
or other treatment of animals or to render them free of disease or to increase their
economic value or that of their product; or

25
Paul Meenu, Intellectual Property Laws, Allahabad Law Agency, Faridabad, 2014, p. 87

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 j) Plants and animals in whole or any part thereof other than micro-organisms but
including seeds, varieties and specied and essentially biological processes for
production or propagation of plants and animals; or
k) A mathematical or business method or a computer programme per se or algorithms; or
l) A literally, dramatic, musical, artistic work or any other esthetic creation whatsoever
including cinematographic works and television productions; or
m) A mere scheme or rule or method of performing mental act or method of playing
game; or
n) A presentation of information; or
o) Topography of integrated circuits; or
p) An invention which, in effect, is traditional knowledge or which is a component or
components.

4.2.2 Inventions relating atomic energy S.4

S. 4 of the Act, 1970 provides that- No patent shall be granted in respect of an invention
relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy
Act, 1962 (33 of 1962).26

26
Cornish, Intellectual Property, Thomson, Sweet & Maxwell, Sydney, 5th Edition, P. 112
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5. Covid Vaccine & Patent Waiver
At the global stage, India is one of the co-sponsors – with South Africa – of a World Trade
Organisation agreement demanding a waiver on intellectual property rights for vaccines for the
duration of the pandemic. The countries had asked the TRIPS Council to recommend, “as early as
possible”, a waiver on the implementation, application and enforcement of four sections in the
second part of the agreement. These sections — 1, 4, 5, and 7 — pertain to copyright and related
rights, industrial designs, patents, and the protection of undisclosed information. The proposal
had said that developing countries “especially”, may face institutional and legal difficulties when
using flexibilities available in the TRIPS Agreement. India’s proposal has recently gained steam,
after US President Joe Biden announced his support, with hopes that this might make it easier for
many more countries to get access to Covid-19 vaccines. At home, however, the Indian
government is not only taking a different stance, it has even asked the Supreme Court to not even
discuss or mention the use of the state’s power to override intellectual property rights for
essential drugs or vaccines, claiming these could have “serious, severe and unintended adverse
consequences in the countries efforts being made on global platform.” One reason may be that it
could hold up complex negotiations with foreign vaccine suppliers, even as the inoculation

campaign faces major shortages.32

32 Available at, https://scroll.in/article/994672/why-is-india-calling-for-a-global-vaccine-patent-waiver-

but-against-discussing-one-at-home, Last Accessed on 4th June, 2022 at 01:20.

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5.1 COMPULSORY LICENCES vis-à-vis COVID VACCINE

The weakness of India’s vaccination programme have come to the fore over the last month,
as the brutal Covid-19 second wave exploded all over the country. Vaccination centres
around the nation have faced shortages, and the current pace would not allow India to reach
herd immunity by the end of the year. Critics demanded that the Centre should invoke its
powers to issue compulsory licenses so that vaccine production can be ramped up, with the
aim of helping the states inoculate more people over a shorter period of time. By invoking a
compulsory license, Government grants permission to a person to make or sell an invention
or product without seeking permission from the patent holder. The question of compulsory
licensing in India involves two important provisions under the Patents Act, 1970.

Section 92: Under this provision, the government can declare compulsory licensing for any
patented invention in times of national or extreme emergency. Once a declaration is made,
the controller general of patents can grant licenses to any applicant. The patent holder will be
paid a royalty fixed by the controller general.

Section 100 of the Act, on the other hand, allows the Centre or others to use the invention for
the purposes of the government, if deemed necessary. This would allow Indian companies to
begin manufacturing while the royalty is negotiated. If the negotiations fail, it falls upon the
High Court with the jurisdiction to fix a reasonable royalty.

5.2 GOVERNMENT’S STAND

The Central Government said “it was against compulsory licensing” in its affidavit to the
Supreme Court. In communicating this position, the Centre has used convoluted language in
its affidavit, making no clear distinction between essential drugs and vaccines. October 2020,
India and South Africa made a joint proposal before the WTO seeking a waiver on enforcing
four types of intellectual property rights under the Trade Related Aspects of Intellectual
Property Rights agreement. These are patents, industrial designs, copyrights and trade secrets
or undisclosed information.

While at the WTO level India seeks a waiver on intellectual property rights, before the Supreme
Court, the Centre has essentially said that it was at the moment not in favour of discussing

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statutory provisions to grant compulsory licenses, even though it added a caveat that if
applications are made for such licenses, they may be considered.

The IP waiver might open up space for production of Covid vaccines with emergency use
authorisations (EUA) — such as those developed by Pfizer, Moderna, AstraZeneca,
Novavax, Johnson & Johnson and Bharat Biotech — on a larger scale in middle-income
countries. Most production is currently concentrated in high-income countries & production
by middle-income countries has been happening through licensing or technology transfer
agreements. So allowing Compulsory Licensing will go a long way in achieving the set
targets of inoculation drive in developing countries & that too at affordable rates.

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6. Conclusion
Term patent usually refers to the right granted to anyone who invents something new, useful
and non-obvious. In John Hinde v. Osborne Garrette & Co.,33 the meaning and object of
patent is defined beautifully where the inventor says, “I ask you, the public, or rather I ask the
Crown, to give me a monopoly for a certain number of years, and in consideration of their
giving me that monopoly I will tell them in my specification the nature and manner of using
the invention I claim.”

A patent is a form of intellectual property that gives its owner the legal right to exclude others
from making, using, selling and importing an invention for a limited period of years, in
exchange for publishing an enabling public disclosure of the invention. In most countries
patent rights fall under civil law and the patent holder needs to sue someone infringing the
patent in order to enforce his or her rights. In some industries patents are an essential form of
competitive advantage; in others they are irrelevant

The subject of Patent Law is to encourage scientific research, new technology and industrial
progress. Grant of exclusive privilege to own, use or sell the method or the product patented
for limited period, stimulates new inventions of commercial utility. The price of the grant of
monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the
fixed period of the monopoly passes into the public domain.

Patents can provide great value and increased returns to individuals and companies on the
investment made in developing new technology. Patenting should be done with an intelligent
strategy that aligns business interests to implement the technology with a wide range of
options in the search for how, where and when to patent. As an example, with a focus on
international considerations and regulations in specific countries, it is possible for a company
to achieve significant savings and improve the rights gained using patents.

33
(1882) 2 RPC 45 (65)

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7. References

STATUTES

• The Patents Act, 1970.

• TRIPS Agreement, 1995.

BOOKS

• Bentley L, Intellectual Property Law, Oxford University Press, Great Britain, 3rd
Edition, 2001
• Bhandari M.K., Law relating to Intellectual Property Rights, Central Law
Publications, Allahabad, 2nd Edition, 2010
• Khanna Vanita, Intellectual Property Rights, Mewar University Press, New Delhi, 2016
• Padmanabhan Ananth, Intellectual Property Right Infringement & Remedies, Lexis
Nexis Butterworths Wadhwa, Nagpur, Delhi
• Paul Meenu, Intellectual Property Laws, Allahabad Law Agency, Faridabad, 2014
• Ryder Rodney, IPR Internet, Lexis Nexis Butterworths Wadhwa, Nagpur, Delhi, 2012.

• Srinivasulu, Intellectual Property Rights, Regal Publications, New Delhi, 2nd Edition,
2011
WEBLINKS

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2022 at 11:53 A.M.
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2022 at 12:28 P.M.
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https://scroll.in/article/994672/why-is-india-calling-for-a-global-vaccine-patent-

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