Concept and Historical view of the Patents

The concept and understanding of Patent law in its socio-economic and legal meaning as it stands today is profoundly different from the concept as it originated in the early colonial times in Europe and America. All the more intriguing is the conceptualization of “invention” and its associated “patent rights” under the intellectual property rights (IPR) regime as it stands to be far-removed in terms of legal, administrative, political principles and practices at the time of its origin as compared to today. It is almost revolutionary the change that has arisen across the realm of IPR and particularly the Patent regime. It has gone from a simple document to an elaborate, state-of-the-art, multifarious system involving structured mechanisms and supporting documents.    

Patent

A Patent is an intellectual property and its associated IPR arising in the technological field. It is granted as a monopoly, exclusive, enforceable right to a legal person (including an assignee) by a jurisdiction in return for the disclosure of his invention that fulfills the criteria of being novel, inventive, industrially usable and for a subject matter allowed to be patented in said jurisdiction, along with some other technical and disclosure formalities. Such a right is mandatorily given for a limited period of time. As defined at the WIPO website and quoted here “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.” (Emphasis added). Further, the rights granted to a Patent holder as stated at the WIPO website and quoted here “In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner's consent.” (Emphasis added). Additionally, such Patent rights are given only in the region of the applicability of the territorial jurisdiction of the granting authority, i.e., only applicable in the region of the country of filing and subsequent grant of the Patent. However, it is allowed and encouraged to apply and get granted the Patent rights for the same or similar disclosure subject to conforming to formats and practices of a given jurisdiction if the applications for the same are filed in a specified and accepted period of time per the laws of the specific jurisdiction. Thus, an inventor or assignee of an inventor can enjoy Patent rights in multiple territorial jurisdictions arising out of the same disclosure in the public domain.

Origin of the concept of Patent

As far as traceable history goes, evidence suggests the existence of a rudimentary form of Patent right in Ancient Greece, particularly in Sybaris where exclusive rights were being granted to creators of culinary dishes as early as in 500 B.C.

In England, letters patent was issued to the inventor, John Kempe by King Edward the III as per records as early as in 1331 for his disclosure and teaching on the weaving of woolen clothes and granted entry into England to exercise his trade freely.

The first industrial patent filing can be traced back to 1421 when Filippo Brunelleschi, an architect and developer of a crane system for shipping and transporting marble from the Carrara mountains, and who received the first recorded patent for an industrial invention. This Italian Patent granted Filippo 3 years of monopoly rights on the manufacture of the patented crane system for transporting marble.   

In 1449, John of Utynam became the first recorded person to have been awarded a Patent in England by King Henry VI. This English Patent granted John an exclusive right and monopoly on producing stained glass for a period of 20 years.

The first Patent law formulating the concept of Patent as an IP and preserving the rights of the inventors was put forth in 1474 by the Venetian Senate by way of a Venetian Act and was a result of the Renaissance movement going on in Venice. The said Act formed the basis for many a modern-day international Patent statute.

In England, during the period of the reign of Queen Elizabeth the I and her successor, King James the I, many industries were imported and established in England by way of grant of Patents. It was however noted that the Crown courts were granting Patents even for well-known techniques and commodities especially to import and establish industries from the favored nations. Thus, the Privy Council deduced that the Crown was abusing its Sovereign powers in granting such rights, and realized the need for proper scrutiny of applications for Patents and Patent rights in the common law courts.

History and progress of enactments and statutes on Patent laws

To address the aforementioned challenge, the British Parliament in 1624 enacted the Statute of Monopolies. Here, the provision under the statute banned most Crown-driven monopolies, but lead to the introduction and grant of letters Patent for inventions related to new manufactures providing a monopoly right for a period of up to 14 years. Under Section 6 of the Statute of Monopolies, it was specifically clarified that the grant of Patents is for inventions that are proven to be novel. This established the foundations for not just the modern British Patent regime but also influenced the modern Patent law in the USA.

For the USA, the groundwork for establishing a statute governing the Patent law was laid in 1787 by the Constitution of the USA via Article 1, Section 8, Clause 8 that propagated the idea of recognition of Patent Rights for the inventors and in turn to progress science and useful arts by way of limited-time exclusive rights to the inventors for their discoveries. Following the ratification of the Constitution of the USA, in 1790, the USA got its first Patent Act.

France followed suit to the USA and passed its Patent enactment in 1791. At the dawn of the 20th Century, many countries had some form of Patent regime.

A leap in the criteria for analyzing and granting a Patent came with the Patent Act of 1952 and the amendments therein, where the principle and procedure associated with non-obviousness of a process or a product were introduced as a requirement for obtaining a Patent. This also aided better definition and protection of the Patent rights, especially in terms of infringement of rights of the Patent owner. 

The curious case of to be or not to be patentable:

The next major boom in patentable subject matter and obtainment of Patent came with the much illustrated and celebrated decision in Diamond versus Chakrabarty in the year 1980, which changed the landscape of Patent as IP and patentable subject matter forever and for the better. The legal issue being contested in the Court of law here concerned whether living organisms, particularly synthetic, laboratory-generated organisms may form the subject matter of a Patent. The ruling, in this case, can be traced as the beginning of its own industrial revolution in the field of Biotechnology and Agri-technology. Here, a microbiologist by the name of Anand Chakrabarty of General Electric company had filed an application for a Patent for an invention for a genetically engineered bacterium produced in the laboratory with genetically enhanced capability to breakdown crude oil, much useful in addressing the need and problem associated with oil spills. During the examination, as per the norms and statutes under the Patent law and procedure of the time, the examiner refused to grant such a Patent, reasoning that life or the living are non-patentable subject matter. The case went through prosecution, appeal, and reversal and was finally tried at the Supreme Court of the USA, where the Chief Justice Warren Burger finally decreed that the genetically engineered bacterium of Chakrabarty was indeed a patentable subject matter and it resulted in the very first biotechnology Patent claiming a living organism. The reasoning of Chief Justice Burger was irrespective of the question of living or non-living and rather focused on the invention in genetically engineering the claimed bacterium which resulted in an invention that was evidently and strikingly different from anything occurring in nature and there was indeed no equivalent in the nature and hence, this Patent gave rise to a new generation of Patents and Patentable subject matter. Nonetheless, it remains a contentious and highly contested issue of patentability across the various Patent regimes of the world.   

International agreements and conventions

Adopted back in 1883, the Paris Convention or the International Convention for the Protection of Industrial Property remains a very influential and accepted international agreement on IPR including Patents. It has undergone many amendments through the years but retains a substantial position in the field of Patents providing benefits to inventors from member nations of filing in a period of 1-year subsequent applications in several other member nations based on the priority date of the first filing date for an application in the country of the inventor.

Another pivotal international agreement is the 1970’s Patent Cooperation Treaty (PCT) that further streamlined the filing of applications for Patents in multiple member nations by the filing of an international application for Patent for the same invention at the centralized filing facility with uniform procedures and standards concerning the application.

Regionally, the European Patent Convention (EPC) after it created the European Patent Office (EPO) in 1977 allows regional filing, assessment and initial grant of a Patent for the European Union member nations, which then following validation in individual member nations acquires a national Patent status in the countries where the inventor or his assignee files a further application for the Patent to be validated.

A revolutionary international agreement that tried to bring harmony and minimum standards to the realm of all IPR, including Patent as an IP was the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), effective since 1 January 1995, and originated out of the Uruguay Round of the General Agreement on Tariffs and Trade (GATA). Any member nation to the World Trade Organization (WTO) that formed in 1995, is by default a member of the TRIPS and requires all member nations to extend Patent protection to any invention in any field of technology related to products or processes that fulfill the patentability criteria of novelty, inventive step and are capable of industrial application. However, the TRIPS allows a limited sui generis restrictions on subject matter held to be non-patentable including but not limited to plants and animals other than microorganisms (has its own limitation with respect its existence in natural form or not), medical methods such as diagnostic, therapeutic and surgical methods, as well as inventions whose commercial use would go against public order or morality, on an otherwise non-discriminatory system. It also provides a mandatory minimum term of Patents as 20 years from the date of the first filing of the application for Patent on an invention.  

History of Patent in India

The very first statute pertinent to the Patent regime in India was the Act VI of 1856 based on the British Patent Law of 1852 under the British rule in India that allowed for exclusive rights granted to an inventor for manufacturing new things for a limited period of up to 14 years.

Next came the modification in 1859 called Act XV for Patent Monopolies as exclusive privileges to make, sell, and use to the inventors for their inventions in India and authorizing others to do so for a limited period of up to 14 years from the date of filing.

Then in 1872 came the Patterns and Designs Protection Act, followed by the Protection of Inventions Act of 1883, which was later compiled into the Inventions and Designs Act in 1888.

A major step in the Patent law in India came with the enactment of the statute, the Indian Patents, and the Designs Act of 1911, which provided basic protection to Patents.

Post-independence, after much deliberation and taking into account the abuse of Patents in India, the 1949 committee report from the Chairmanship of Justice (Dr.) Bakshi Tek Chand, led to amendments in 1950 and 1952 to the Indian Patents and Designs Act of 1911 to bring it in concert with the British Patent Acts of 1919 and 1949. Also, amendments were made to safeguard food, medicine, surgical and curative devices from being taken away from the public under monopoly rights conferred by Patents and making sure that they are available in the public interest at the cheapest prices to the public at large while compensating any Patentee holding such a monopoly right called as compulsory licenses and revocation provisions. Further included were the words license of right on granted Patents to show the Government’s enforcement of rights by the Controllers at the Indian Patent Office (IPO).

In continuation of post-independence desire and need to conform to the Patent regime to Indian public’s needs and wants, the Government of India in 1957 under the chairmanship of Justice N. Rajagopala Ayyangar constituted another Committee for revising the Patent law in India. After several deliberations based on the report submitted by the said committee, the Act of 1911 was repealed and replaced by the Patents Act of 1970, which is still in existence and enforcement in India. The said Act of 1970 came into force in the territory of India on 20 April 1972 along with the publication of the Patent Rules of 1972. The Patents Act, 1970 has been amended several times after the formation of WTO and Indian becoming a member of the same to conform with the guidelines and practices under the TRIPS agreement with the Patents (Amendment) Act of 1999, the Patents (Amendment) Act of 2002 and the Patents (Amendment) Act of 2005, respectively.     

REFERENCE

1. https://www.wipo.int/patents/en/

2. https://www.ipindia.nic.in/

FREQUENTLY ASKED QUESTIONS AND ANSWERS:

Q1. What is the duration for which Patent is granted?

A1. A Patent as an IPR is granted for a period of 20 years as a mandatory minimum per the most widely followed TRIPS agreement.

Q2. What are the rights conferred under the Patent law?

A2. A Patent Owner or an assignee or a proprietor of a Patent get monopoly rights and exclusion rights to decide who can use, make, sell, offer for sale and import the invention as protected under the Patent for a limited period most of 20 years.

Q3. What happens to the invention protected by Patent after its duration under Patent law?

A3. After the expiry of the Patent protection period, the invention so protected enters the public domain as disclosed and anyone is free to exploit it freely without any penalties.

Q4. Are there ways in which Patented inventions may be used without a penalty in the protection period?

A4. Yes, there are a few exceptions where even a Patented invention may be used by others, even without specific authorization by the holder of rights under the Patent such as by the Government in public interest or for public health, for educational and research purposes without any commercial angle, to fulfill the requirements of regulatory authorities, among others.