Intellectual property has increasingly assumed a vital role with the rapid pace of innovation in the areas of science, technology, and medicine that is being witnessed today. Moreover, changes in the global economic environment have influenced the development of business models where intellectual property is a central element in establishing value and is proving to be a potential growth enhancer. The Indian scenario, specifically, has witnessed the passing of several new legislations for the protection of intellectual property rights (IPRs) have been passed to meet the international obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The balance sheet formats developed over the ages and those forming part of the legal framework take into account two types of assets that a company holds, tangible assets and intangible assets. In simple terms, they differentiate the physical acquisitions of a company's assets from those which can neither be seen nor touched but which hold the capability of providing a company with the much-needed advantage over its competitors.
Intellectual property is one such intangible asset or to be precise holds a significant position in this segment of intangible asset. Depending on the area of operation of the company or business enterprise, such intellectual property may range from trademarks, patents, copyrights, geographical indications, etc. Intellectual Property is the innovative work produced as a result of the application of brainpower, understanding and expertise that may be of some material benefit to the innovator. According to the World Intellectual Property Organisation (WIPO), “Intellectual Property refers to creations of the mind: inventions; literary and artistic work; and symbols, names, and images used in commerce”.
Types of Intellectual Property:
Intellectual property or IP can be broadly categorized under two main heads:
Figure 1: Types of Intellectual Property
Industrial Property: Industrial property comprises of trademarks, geographical indications, patents for inventions and industrial design
Copyright: Copyright is associated with materials of literary, artistic or musical nature. It includes works, such as novels, poetry and theatres, movies, music, artistic works, such as drawings and illustrations, paintings, photos, figures and monuments, and architectural design. Rights related to copyright include those of performing artists in their performances, those accorded to producers of phonograms for their recordings, and broadcasters in their television and radio programs
Why promote and protect Intellectual Property?
As on date, the promotion and protection of Intellectual property requisitions immediate attention for various compelling reasons. First and foremost being the fact that the well-being and progress of the human civilization rests on its abilityand capability in the creation and invention of new works in the areas of science, culture and technology. Secondly, such legal protection of new creations provides as an efficient encouragement mechanism for enhancing the commitment of additional resources into further innovation. Thirdly, such protection and promotion of intellectual property not only spurs economic growth, but aids in the creation of new jobs and industries as well thereby enhancing the quality of life. Having an equitable and efficient intellectual property safeguard mechanism in place can help in the realization of intellectual property's potential globally which proudly acts as a catalyst for economic growth and development as well as social and cultural well-being.
The intellectual property mechanism helps strike a balance between the interests of innovators and that of the general public, providing an environment in which creativity and invention can flourish, for the mutual benefit of all the stakeholders.
What are Intellectual Property Rights?
In terms of their basic nature, Intellectual property rights or IPRs are just like any other property right, mainly allowing the owners or creators of trademarks,patents or copyrighted works to benefit from their own work or investment in a creation. Article 27 of the Universal Declaration of Human Rights outlines these rights which include provide the right to benefit from the protection of moral and material interests resulting from authorship of literary, scientific, or artistic productions.
The two treaties administered by the World Intellectual Property Organization (WIPO) which were premier in recognizing the significance of intellectual property are as follows:
Paris Convention for the Protection of Industrial Property (1883); and
Berne Convention for the Protection of Literary and Artistic Works (1886).
Types of Intellectual Property Rights: An Overview
Table 1: Types of Intellectual Property Rights
Intellectual Property Right Definition and Examples
Patent A patent is an exclusive right granted for an invention which may either be a product or a process providing new ways of doing something, or something offering a new technical solution to an existing problem.
A patent provides patent owners with protection for their inventions.
Protection under a patent is usually granted for a limited period, normally which is 20 years.
Precisely, a patent protects functional expressions of an idea under question and not the idea itself.
Trademark A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company.
The origin of this concept dates back to ancient times when craftsmen reproduced their marks or signatures, on their products or artistic creations of a functional or practical nature.
Over the years, these marks have evolved into today's system of trademark registration and protection.
The system of trademark helps the consumers in identifying and purchasing a product or service based on the fact as to whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs.
The purpose of a trademark is to protect any symbol indicating the source or origin of the goods or services to which it is affixed.
Industrial Design An industrial design refers to those aspects of an article which may be considered aesthetic or ornamental. A design may consist of 3D features, such as the shape or surface of an article, or 2D features, such as lines, patterns or color.
Applied to a wide variety of industrial products and handicrafts, Industrial designs may vary from technical and medical instruments to jewellery, watches, and other luxury items; from electrical appliances and house wares to vehicles and architectural structures; from textile designs to leisure goods
An industrial design must be new or original and non-functional to be protected under the laws of the land. Primarily, an industrial design is of an aesthetic nature, and the technical features of an article to which it is applied are not cosseted by the design registration. Though, these features could be protected by a patent.
Geographical Indication Goods having a specific geographical origin and possessing the qualities or reputation earned by them due to the place of origination are denoted using signs known as geographical indications. Generally, geographical indications include the name of the place from which such goods have originated.
Geographical indications are primarily used for agricultural products having qualities which are derived from the places at which they have been produced and are under the influence of local geographical factors, such as climate and soil. For a sign to function as a geographical indication, the national law must promote and protect the same and the consumer must perceive and acknowledge it with the right intent.
Such GIs are used for a wide range of agricultural products. In the Indian mainland, the “Darjeeling” is used for tea produced in this area of Assam; and “Fazli” for mango produced in a specific area of West Bengal. However, the use of such GIs is not limited to agricultural products.
They may also highlight specific qualities of a product that are due to human factors found in the product's place of origin, such as specific manufacturing skills and traditions. As far as the Indian scenario is concerned, handicrafts form a significant part of such geographical indications.
The place of origin may be a village or town, a region or a country. The “Pashmina” is synonymous with Kashmir, “Kancheepuram Silk” with Tamil Nadu and “Chanderi Fabric” with Madhya Pradesh. All these are just the tip of the iceberg as far as the geographical indications are concerned.
Copyright and Related Rights Copyright laws grant authors, artists and other creators protection for their literary and artistic creations, generally referred to as “works”. A closely associated field is “related rights” or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration.
The beneficiaries of such copyrights and related rights include actors and musicians (who are performers of their own accord); sound recorders or producers of phonograms; and broadcasting organizations in their radio and television programs.
Works covered by copyright include, but are not limited to: novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps and technical drawings
Copyrights and other related rights protect the specific creative expression of an idea through any medium of artistic/creative expression.
While Intellectual Property Rights covers a plethora of protection mechanisms that exist to defend innovative materials against duplication or theft, this study focusses primarily on Patents. Inventions arising from the creative work of human beings acquire considerable commercial value, in view of the possibility of their use by large sections of the society not only within the country but also in other countries of the world. Patent is one of the very common modes through which scientific inventions having potential for industrial application are being protected.This is because, although each mechanism is distinctly specified demarcating their application, theremight be overlap wherein a material falls under two or more of the categories.
The reason why patents have been picked up over and above all other forms of intellectual property rights has been detailed in Chapter 3 under section …..
Inception of Patent
The creative work of the human mind is protected through several measures and the main motivation for thesame is that such protection is a definite measure of encouragement for the creative activity. Several formsof protection of the creative activity have come about including those which are of particular interest in theindustrial development. Patents being one of them. Generally speaking, patent is a monopoly grant and itenables the inventor to control the output and within the limits set by demand, the price of the patentedproducts. Underlying economic and commercial justification for the patent system is that it acts as a stimulusto investment in the Industrial innovation. Innovative technology leads to the maintenance of and increase in nations stock of valuable, tradable and industrial assets.
Concede of first patent can be followed as far back as 500 B.C. It was the city overwhelmed by gourmands, and maybe the in the first place, to concede what we now-a-days call patent appropriate to advance culinary workmanship. For it gave selective privileges of offer to any confectioner who initially imagined a tasty dish. As the practice was stretched out to other Greek urban communities and to different specialties and wares, it obtained a name \'syndication\', a Greek Portmanteau word from mono (alone) and polein (deal).
Confirmations of give to private people by lords and leaders of select property rights to creators goes back to the fourteenth Century, yet their motivation shifted all through the history. History demonstrates that in fifteenth Century in Venice there had been methodical utilization of imposing business model benefits for designers for the support of development. Utility and oddity of the innovation were the imperative contemplations for allowing a patent benefit. The innovators were additionally required to put their creation in business use inside a predetermined period.
In sixteenth Century the German sovereigns granted innovators of new expressions and machines and furthermore thought about the utility and curiosity of developments. Early laws in American settlements served essentially to urge outside producers to set up new enterprises in the provinces by giving them secured residential markets.
By the late fifteenth Century, the English government progressively began utilizing restraining infrastructure benefit to reward court top choices, to secure faithfulness and to secure control over the business yet these benefits were not used to empower developments. In 1623, the English Parliament embraced a Statute of imposing business models which perceived the designers patent as a legitimate restraining infrastructure to be recognized from other syndication benefits. The Statute prohibited the granting of imposing business model benefits with the exception of first and genuine designer of another produce.
In England amid the sixteenth and seventeenth Century, the innovator\'s patent of syndication had happened to awesome national significance. From the mid-seventeenth Century through the mid-nineteenth Century, the laws perceiving the patent syndication spread all through Europe and North America, yet these benefits were not allowed without the restriction.
Concept of Patents
A patent is a selective right allowed for a creation – an item or process that gives another method for accomplishing something, or that offers another specialized answer for an issue. A patent furnishes patent proprietors with insurance for their creations. Security is allowed for a restricted period, by and large 20 years. A patent ensures practical articulations of a thought and not simply the thought.
Why are patents necessary?
Patents, by and large provide motivation to people by perceiving their innovativeness and offering the likelihood of material reward for their attractive creations. These impetuses empower development, which thus upgrades the nature of human life.
Patent insurance implies a development can\'t be industrially made, utilized, disseminated or sold without the patent proprietor\'s assent. Patent rights are normally upheld in courts that, in many frameworks, hold the specialist to stop patent encroachment. On the other hand, a court can likewise proclaim a patent invalid upon an effective test by an outsider.
Advantages of owning a patent
A patent proprietor has the privilege to choose who may – or may not – utilize the licensed development for the period amid which it is ensured. Patent proprietors may give 5 consent to, or permit, different gatherings to utilize their innovations on commonly concurred terms. Proprietors may likewise offer their development rights to another person, who then turns into the new proprietor of the patent. Once a patent lapses, security closes and the creation enters people in general space. This is otherwise called getting to be plainly off patent, which means the proprietor no longer holds elite rights to the creation, and it ends up noticeably accessible for business abuse by others.
Intellectual Property Rights
Narin F. and Noma E. (1987) in their study titled “Patents as indicators of corporate technological strength” reveal that quantitative indicators of the technological strengths of individual companies would be an important addition to the financial and economic data used in competitor assessments, merger/acquisition analyses, investment decisions, and corporate planning and management. This study covering 17 pharmaceutical companies from United States examines the relationship between corporate patent and patent citation data, and several other indicators of corporate performance such as research and development budgets, changes in sales and profits, scientific productivity, and expert opinions of company technological strength. The results of the study were quite astounding revealing that the patent data are an excellent indicator of overall corporate technological strength. The study witnessed correlations ranging around 0.6 to 0.9, between increases in company profits and sales, and both patent citation frequency and concentration of company patents.
Pakes, A. and Schankerman, M. (1984) prepared a theoretical mathematical model depicting as to how patent renewal will lead directly to a procedure for estimating the rate of decay of appropriable revenues from such patents in their research titled “The Rate of Obsolescence of Patents, Research Gestation Lags, and the Private Rate of Return to Research Resources”.
The authors study and analyze the conceptual distinction between the rates of decay in the appropriable revenues accruing to knowledge-producing activities and that of the physical productivity of traditional capital goods. Their works suggested that, during in the early 1960s, the private rate of return to research expenditures was not unreasonably high. Also, to gain more effective results in this regard information on the social rate of return must also be taken into account.
Objectives of the study
In consonance with the topic stated hereinabove, the present study has been designed to:
Study the laws or the regulatory framework governing the system of patents focusing on their significant sections which differentiate them from their global counterparts in the sample set of the study;
Analyse the data available with respect to patents and yield meaningful results; and
Suggest policy prescriptions and legal recourses based on the findings of the study.
Qualitative and quantitative research approach sampling, differently. Since a sample is the representation of the complete data set or the population, it becomes imperative to judiciously select a sampling technique which shall depict the characteristics of the population to the core. Given that, the present study is focused entirely on patents from all the intellectual property rights; both quantitative and qualitative research shall be focused on the same sample set. Hence, a non-random sampling technique is expected to reap better results than a probabilistic one.
One such technique is that of Purposive or Judgmental sampling. Purposive sampling is a sampling technique used for special situations; as is the case with the present study. The technique is appropriate for situations wherein selection of unique cases can be extremely informative. Purposive sampling can be extremely helpful in identification of a particular type of cases for in-depth investigation.
Considering the comparative nature of this study, the patent laws, number of patents granted and the number of patents in force in the BRICS nations seem to qualify for the purpose of this study.
Since the number of countries is not humungous, each of these countries shall be studied in detail using Case Study Analysis.
Association of some of the internationally recognized emerging national economies which once were considered as Third World economies but have outgrown this image, the BRICS comprises Brazil, Russia, India, China and South Africa. The significance of BRICS is immense since the member nations are all leading developing or newly industrialized countries, but they are distinguished by their large, sometimes fast-growing economies and significant influence on regional affairs. Furthermore, all five countries are also G-20 members.
As of 2015, the five BRICS countries represent over 3.6 billion people, or about 40% of the world population. In addition, all five members are in the top 25 of the world by population, and four are in the top 10. The five nations have a combined nominal GDP of US$16.6 trillion, equivalent to approximately 22% of the gross world product, combined GDP (PPP) of around US$37 trillion and an estimated US$4 trillion in combined foreign reserves. Overall the BRICS are forecasted to expand 4.6% in 2016, from an estimated growth of 3.9% in 2015. The World Bank expects a growth rate of 5.3% from the BRICS segment in 2017.
Source of Data
Various resources and sources have been looked up to for fulfilling the data needs of the study at hand. Since all the data is secondary, care has been taken to select websites and links which hold either national or international authenticity.
Data Source for Patent Laws
Since, the laws of each nation as regards the patent protection therein are drafted, implemented and protected by well charted out mechanisms, it seemed pertinent to hail the information directly from the horse\'s mouth. The ministries or departments of the select nations under the purview of this study have proudly posted the Acts enacted and governing the patents in their nations. Such Acts have plethora of sections each dealing with a unique area of patents. From defining what would qualify as a patent to filing of patent applications, their durations, what would account as infringement and furthermore the punishments for the same have been detailed therein. However, each country has its own way of chalking out the basic charter of law in this regard, the basic intent still remains the same, to ensure the proper protection of a significant intellectual property right. A total of five Acts, one for each nation has been selected, studied and analysed for each nation under this project.
Data Source for number of Patents granted and those still in force
Apart from each nation taking due care of the patents, their applications and their protection in their respective economies, a global organisation takes account of the positioning, betterment and protection of intellectual property rights across the world. With businesses expanding businesses and collaborations being entered into on a daily basis, it becomes all the more necessary to have such an organisation in place and running efficiently and effectively. The World intellectual property organisation (WIPO) is the organisation undertaking the task of bringing about uniformity in the area of its activity across nations. The collector of data statistics, the organisation breeds authenticity. For each nation, the data is available for a different time period. Hence, individual analysis has been conducted for each nation.
The study has been constrained around the following variables:
Patent approval Rate;
Patents in force; and
Patent growth rate.
Purpose of the topic
In today's economic scenario, the sheer process of the things that have become a part and parcel of our lives have been kept under tight lock and key. The best example one can think of at this juncture is the soft drink that goes down our throats, with or without ice, with every second or third meal. Something without which we can't even imagine our lives and yet all we know about it is that, it is flavored carbonated water. But then one may ask how the taste of one soft drink is different from another? Why are their only these few major players in this market, whom we look up to while making our purchases? The answer to the same lies in the very heading cited above. The same seems as a reason, apt enough to pick this very reason of giving a product provider an unprecedented advantage over its competitors while protecting its secrets at the same time, for the purpose of the study at hand.
Tools and techniques
Qualitative Techniques – Case Study Approach
The inclination to use Case Study Research in a particular study stems from the specifications of that study, which in this case are sample size and variedness of the members of the sample set, i.e. the special characteristics possessed by each of them. In terms of giant-sized organizations, it is difficult to analyze a single aspect in isolation, maintaining all other aspects as constant. Hence, a case study research approach serves the purpose fully.
Using the logic of analytic rather than enumerative induction, case study technique shall be helpful in the study of the patent laws of all the nations of the sample se, i.e., the BRICS nations.
Quantitative Techniques – Trend Analysis
Trend analysis is that statistical technique which often inculcates the techniques for mining an underlying behavioral pattern in a time series which may not otherwise be visible to the plain eye. If the trend is linear, such trend analysis can be undertaken within what may be described in Trend estimation as a formal regression analysis. If the trends have other shapes than linear, trend testing can be done by non-parametric methods, e.g. Mann-Kendall test, which is a version of Kendall rank correlation coefficient. For testing and visualization of non-linear trends also Smoothing can be used.
Patent Laws decoded – BRICS
Recognized types of Patents
LPI sets up two sorts of patents: Patent Innovations (the \"PI\") and Utility Model (the \"UM\"). A PI is allowed when a creation is novel, includes an imaginative stride and is equipped for modern application. To follow the curiosity necessity, the innovation must be new to the world\'s assemblage of specialized learning. An innovation includes a creative stride when it is not evident to a man of normal aptitude in the significant region. Mechanical pertinence is fulfilled when the creation can be made or consolidated into practice in the separate business. An UM can be alluded to as \'minor patent\' and its guidelines are like those for PI, despite the fact that the obstacle is lower for UM. It might be allowed when the question has a modern utilize, presents another shape or design and includes an innovative demonstration that outcomes in utilitarian change regarding use or fabricate. LPI works under the \'first to document\' guideline, i.e., if two individuals apply for a patent on an indistinguishable development, the first to record the application will be granted the patent.
Granting of the Patent
As indicated by the National Patent Law of Brazil, A patent might be allowed after the application is endorsed, and verification of installment of the relating expense has been outfitted, by methods for issuing the particular patent declaration.
The installment of the expense and its particular evidence of installment must be done inside a time of 60 (sixty) days of endorsement.
The charge accommodated in this Article may likewise be paid and demonstrated inside 30 (thirty) days of as far as possible alluded to in the previous Paragraph, freely of any, endless supply of a particular expense, under punishment of having the application completely expelled.
A patent might be considered to have been conceded on the date of production of the individual demonstration.
The patent authentication should contain its number, title and nature, the name of the designer, with due respect for the arrangements of Paragraph 4 of Article 6, the recognizable proof and home of the titleholder, the term, the details, the cases, and the drawings, and in addition the information in regards to need.
Term of the Patent
A protection of 20 years is awarded to a Patent Invention as opposed to a 15 year protection awarded to a utility model. Once granted, this patent protection is considered to be in force from the date of filing.
Except in cases where the INPI has been prohibited from inspecting the advantages of the application due to an ongoing judicial argument or due to matters concerning force majeure, the duration of the Patent must not be below 10 years for a PI and 7 years for a UM, commencing from the date of granting.
Rights and Obligations of the Patent Owner (Article 10)
Rights of the Patent Owner
According to the Russian patent law and the rights of the Patent Owner maintained therein, the patent proprietor should have an exclusive right to the innovation, utility model or industrial design. No entity has the privilege to utilize a licensed creation, or utility model without authorization from the patent proprietor, nor to do the subsequent, aside from cases, when such activities, under the present Law, donot abuse the exclusive right of the patent proprietor:
import into the Russian Federation, fabricating, misuse, offer available to be purchased, deal, other presentation into common flow or capacity for such reasons for items that involve a protected development, utility model, or articles consolidating an industrial design;
Execution of activities, recorded in subparagraph two hereunder, with regards to an item got straightforwardly determined by a patented procedure. Given that, if the item acquired by the patented process, is new, an indistinguishable item might be considered as gotten from the patented process in case of lack ofproof of the opposite;
execution of acts, expressed in subparagraph two hereunder, in regard to an equipment, the working (abuse) of which as per its functioning principle naturally includes a patented process;
Execution of a procedure that uses a patented invention (PI).
The process for the utilization of an invention, utility model or industrial design, if the patent protection for the same is shared by a few people, should be characterized in an agreement between such people. Without such an agreement, each of the patent proprietors may utilize the protected material at their discretion, yet may not give a permit or disperse the exclusive right (dole out the patent) to a third party without a consensus amongst the patent proprietors.
Obligations of a Patent Owner
The impact of a necessary non-exclusive permit might be ended by court upon a suit from the patent proprietor, if conditions that created the allowance of such permit stop to exist and their repeat is improbable. In such occasion the court might build up the terms and methodology for suspension of utilization by the individual, who gained the obligatory nonexclusive permit, of the rights emerging from the securing of such permit.
If a patent proprietor can\'t utilize an innovation, to which he has a selective ideal, without encroaching on the privileges of a proprietor of another patent for a development or utility model, who has declined to finish up a permit concurrence on for the most part acknowledged terms, such patent proprietor should have the privilege to begin a court activity against the proprietor of the other patent for a necessary nonexclusive permit to use, on the region of the Russian Federation, the creation or utility model of the proprietor of the other patent, expressing in his case his proposed permit terms, including the extent of utilization, the sum and terms and strategies of installment, if the creation, to which he has an elite right, speaks to a vital specialized accomplishment with noteworthy financial focal points over the development or utility model of the proprietor of the other patent.
Patent Infringement (Article 14)
Wherever there is usage of a patented invention, utility model or industrial design in a manner contrary to the Russian Patent law by any natural person or legal entity, the same shall be deemed to be considered as patent infringement.
Certain rights provided to patent owners in this situation include the right to demand:
cessation of patent infringement;
compensation for losses, as per the civil legislation, by the patent infringer;
publication of the court ruling to protect his business reputation;
other remedies as provided under the Russian legislation.
An action against the infringer of the patentcan also brought upon by the exclusive licensee, except where the contract provides otherwise.
The enactment of the Indian Patents and Designs Act, 1911 marked the beginning of patent law in India. The present Patents Act, 1970 which came into force in 1972, amended, consolidated and solidified the existing Patent law structure in India. Pursuant to the TRIPs agreement, the Act was amended in 2002. The original act was limited to granting of patents in the areas of inventions in food, medicine, drugs or chemical substances, and that too only for the methods or processes of manufacture of such items. The Act was further amended through the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and microorganisms. Through the said amendment Act, the provisions relating to Exclusive Marketing Rights (EMRs) were repealed, provision enabling grant of compulsory license was introduced.
There are four Schedules to the Patents (Amendment) Rules 2005:
Schedule Area/Issue addressed
First Schedule Fees tobe paid
Second Schedule List of forms and texts of various forms required in connectionwith various activities
Third Schedule Form of Patent to beissued on Grant of the Patent
Fourth Schedule Costs to be awarded in various proceedingsbefore the Controller
Insert Table name and number Schedules to the Patents (Amendment) Rules 2005
Duration of patent
A period of twenty years from the date of filing of application for the patent has been prescribed under Section 53 of the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2002 for every patent which has not expired and has not ceased to have effect, on the date of the commencement of the Amendment Act.
It is but natural that any patent shall cease its effectiveness on the expiration of the period prescribed for the payment of any renewal fee, if such fee is not paid within the prescribed period or within such extended period as may be prescribed. The cessation of such patent right shall remove the entitlement for protection of the subject matter covered by the patent.
The Indian patent law swears by the tripod system for rendering any product patentable. There are three elements which define and determine whether a product or process is patentable in India or not. These three elements are as follows
Novelty (Section 29-34 of the Patent Act, 1970):
A significant portion the said Act has been focused upon maintaining novelty of the invention for it to be considered fit for the grant of patent And for any invention to be considered as novel, any information disclosed during the filing of the patent application should not be available in the \'prior art\'. This means that there should not be ,before the \'priority date, i.e. the date on which the application is first filed, any preceding disclosures of any information contained in the application for patent either written or in any other form anywhere in the public domain, in any language.
Inventive step (Non-obviousness):
Inventive step is a feature of an invention that involves technical advance as compared to existing knowledge or having economic significance or both, making the invention non-obvious to a person skilled in art. Here, definition of inventive step has been enlarged to include economic significance of the invention apart from already existing criteria for determining inventive step.
An invention shall not be considered as involving an inventive step, if, having regard to the state of the art, it is obvious to a person skilled in the art. The term \"obvious\" means that which does not go beyond the normal progress of technology but merely follows plainly or logically from the prior art, i.e. something which does not involve the exercise of any skill or ability beyond that to be expected of the person skilled in the Art.
An invention is capable of industrial application if it satisfies three conditions, cumulatively:
can be made;
can be used in at least one field of activity;
can be reproduced with the same characteristics as many times as necessary.
The usefulness of an alleged invention depends not on whether by following the directions in the complete specification all the results not necessary for commercial success can be obtained, but on whether by such directions the effects that the application/patentee professed to produce could be obtained.
Inventions not Patentable
The items enlisted below include all those inventions which shall not be accounted for as an ‘invention' for the purpose of getting the same patented:
Frivolous inventions claiming anything obviously contrary to already established laws.
Inventions whose primary use would be contrary to public order or morality thereby causing prejudice to human, animal or plant life.
Mere discovery of a new form of a known substance or of the mere use of a known process which does not result in the enhancement of the known efficacy of that substance or process unless such known process results in a new product.
The arrangement or re-arrangement or duplication of known devices each functioning independently.
A method of agriculture or horticulture.
Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products is not an invention.
Mathematical methods, algorithms, business methods or computer programs per se.
Literary, musical, dramatic, or artistic works or any other aesthetic creations.
Presentation of information is also not an invention.
Topography of integrated circuits is not an invention.
To make the Patent Law in compliance with the TRIPS Agreement, the Patent Law was revised to grant patentee the right to prevent others from “offering for sale\" patented products or products obtained directly by patented processes.
In the revised Patent Law, Article 11 reads: \"after the grant of the patent right for an invention or utility model, except as otherwise provided for in the law, no entity or individual may, without the authorization of the patentee, implement the patent, namely make, use, offer for sale, sell or import the patented product; or use the patented process, or use, offer for sale, sell or import the product directly obtained bythe patented process, for production or business purposes.\"
According to Article 22 of the Patent Law states that any “invention or a utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.” Quasi-enablement and best mode requirements similar to 35USC 112 are also required for properly drafted patent applications (China Intellectual Property for Foreign Business, Catherine Sun, LexisNexis Butterworths, 2004).
Chinese Patent Law requires absolute novelty (Article 22). Public disclosure in publications anywhere in the world destroys novelty, however, only public use or if made known public by other means outside China are not novelty destroying. Thus, an oral disclosure or use outside of China prior to the filing date is not considered prior art under Chinese Patent Law. Inventive step is similar to the European inventive step and the US obviousness standards. To overcome an inventive step rejection, a regular invention must have “prominent substantive features and represents a notable progress” while utility models have a lesser standard of having “substantive features and represent progress”. As with the US standard of utility, the practical applicability standard is not a difficult standard to meet.
Duration of Patents
The duration of a patent shall, unless otherwise provided in this Act, be 20 years from the date of application therefor, subject to payment of the prescribed renewal fees by the patentee concerned or an agent.
A patent shall lapse at the end of the period prescribed for the payment of any prescribed renewal fee, if it is not paid within that period: Provided that the registrar may upon application and subject to the payment of such additional fee as may be prescribed, extend the period for payment of any such fee for a period not exceeding six months.
International Application under Patent Cooperation Treaty
The Patent Cooperation Treaty seeks to assist patent seekers in filing international applications. Filing one application under this Treaty ca provide a patent holder simultaneous protection under various countries who have signed the said Treaty of the WIPO.
The South African Patent laws have a separate set of sections which was inserted to include the processes which an applicant may undergo while filing an international patent application in South Africa.
Effect of a Patent
The effect of a patent shall be to grant to the patentee in the Republic, subject to the provisions of this Act, for the duration of the patent, the right to exclude other persons from making, using, exercising, disposing or offering to dispose of, or importing the invention, so that he or she shall have and enjoy the whole profit and advantage accruing by reason of the invention.
The disposal of a patented article by or on behalf of a patentee or his licensee shall, subject to other patent rights, give the purchaser the right to use, offer to dispose of and dispose of that article.
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