IPR

The need for international protection of intellectual property became evident when foreign exhibitors
refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid
their ideas would be stolen and exploited commercially in other countries.
1883 marked the birth of the Paris Convention for the Protection of Industrial Property, the first major
international treaty designed to help the people of one country obtain protection in other countries for their
intellectual creations in the form of industrial property rights, known as:
inventions (patents)
trademarks
industrial designs
The Paris Convention entered into force in 1884 with 14 member States, which set up an International Bureau to
carry out administrative tasks, such as organizing meetings of the member States.
In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and
Artistic Works. The aim of this Convention was to help nationals of its member States obtain international
protection of their right to control, and receive payment for, the use of their creative works such as:
novels, short stories, poems, plays;
songs, operas, musicals, sonatas; and
drawings, paintings, sculptures, architectural works.

IPR

Like the Paris Convention, the Berne Convention set up an International Bureau to carry out
administrative tasks. In 1893, these two small bureaux united to form an international
organization called the United International Bureaux for the Protection of Intellectual Property
(best known by its French acronym BIRPI). Based in Berne, Switzerland, with a staff of
seven, this small organization was the predecessor of the
A decade later, following the entry into force of the
Convention Establishing the World Intellectual Property Organization, BIRPI became WIPO,
undergoing structural and administrative reforms and acquiring a secretariat answerable to the
member States.
Convention Establishing the World Intellectual Property Organization : This convention was
held at Stockholm on July 14, 1967 and as amended on September 28, 1979 . The agenda of
this convention was to establish an organization that administrate IPR The objectives of the
Organization are:
to promote the protection of intellectual property throughout the world through
cooperation among States and, where appropriate, in collaboration with any other
international organization,
to ensure administrative cooperation among the Unions.

IRP-WIPO

The predecessor to WIPO was the BIRPI (Bureaux Internationaux Runis pour la Protection
de la Proprit Intellectuelle, French acronym for United International Bureaux for the
Protection of Intellectual Property), which had been established in 1893 to administer the
Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention
for the Protection of Industrial Property

WIPO was formally created by the Convention Establishing the World Intellectual Property
Organization, which entered into force on April 26, 1970. Under Article 3 of this Convention,
WIPO seeks to "promote the protection of intellectual property throughout the world." WIPO
became a specialized agency of the UN in 1974. The Agreement between the United Nations
and the World Intellectual Property Organization notes in Article 1 that WIPO is responsible

WIPOs cooperation for development program is closely interwoven with governmental and
intergovernmental cooperation, including WIPOs agreement with the World Trade
Organization (WTO), whereby WIPO assists developing countries in the implementation of
WTOs Agreement on Trade-Related Aspects of Intellectual Property Rights

IRP-WIPO

The Agreement marked a transition for WIPO from the mandate it inherited in 1967 from
BIRPI, to promote the protection of intellectual property, to one that involved the more
complex task of promoting technology transfer and economic development.
Our mission is to promote innovation and creativity for the economic, social and cultural
development of all countries, through a balanced and effective international intellectual
property system.
The World Intellectual Property Organization (WIPO) is the United Nations agency dedicated
to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of
stimulating innovation and creativity.
We promote the development and use of the international IP system through:
Services - We run systems which make it easier to obtain protection internationally for patents,
trademarks, designs and appellations of origin; and to resolve IP disputes.
Law - We help develop the international legal IP framework in line with societys evolving
needs.
Infrastructure - We build collaborative networks and technical platforms to share knowledge
and simplify IP transactions, including free databases and tools for exchanging information.
Development - We build capacity in the use of IP to support economic development.

IRP-WTO

The World Trade Organization (WTO) is an organization that intends to supervise and
liberalize international trade. The organization officially commenced on 1 January 1995 under
the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT),
which commenced in 1948. The organization deals with regulation of trade between
participating countries; it provides a framework for negotiating and formalizing trade
agreements, and a dispute resolution process aimed at enforcing participants' adherence to
WTO agreements, which are signed by representatives of member governments and ratified by
their parliaments.
The WTO's predecessor, the General Agreement on Tariffs and Trade (GATT), was established
after World War II in the wake of other new multilateral institutions dedicated to international
economic cooperation notably the Bretton Woods institutions known as the World Bank and
the International Monetary Fund.
The GATT was the only multilateral instrument governing international trade from 1946 until
the WTO was established on 1 January 1995. Despite attempts in the mid-1950s and 1960s to
create some form of institutional mechanism for international trade, the GATT continued to
operate for almost half a century as a semi-institutionalized multilateral treaty regime on a
provisional basis.

IPR-WTO`s Agenda
Among the various functions of the WTO, these are regarded by analysts as
the most important:
It oversees the implementation, administration and operation of the
covered agreements.
It provides a forum for negotiations and for settling disputes.
Additionally, it is the WTO's duty to review and propagate the national
trade policies, and to ensure the coherence and transparency of trade
policies through surveillance in global economic policy-making.
Another priority of the WTO is the assistance of developing, leastdeveloped and low-income countries in transition to adjust to WTO rules
and disciplines through technical cooperation and training.
The WTO is also a center of economic research and analysis: regular
assessments of the global trade picture in its annual publications and
research reports on specific topics are produced by the organization.
Finally, the WTO cooperates closely with the two other components of the
Bretton Woods system, the IMF and the World Bank.

IPR-TRIPS

Stands for : Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
The extent of protection and enforcement of IPR varied widely around the world; and as intellectual
property became more important in trade, these differences became a source of tension in
international economic relations. New internationally-agreed trade rules for intellectual property
rights were seen as a way to introduce more order and predictability, and for disputes to be settled
more systematically.
The Uruguay Round achieved that. The WTOs (TRIPS Agreement) is an attempt to narrow the
gaps in the way these rights are protected around the world, and to bring them under common
international rules. It establishes minimum levels of protection that each government has to give to
the intellectual property of fellow WTO members.
The agreement covers five broad issues:
how basic principles of the trading system and other international intellectual property
agreements should be applied
how to give adequate protection to intellectual property rights
how countries should enforce those rights adequately in their own territories
how to settle disputes on intellectual property between members of the WTO
special transitional arrangements during the period when the new system is being introduced.

Types of IPR

patent
copyright
trademark
industrial design
integrated circuit topography
plant breeders rights
trade secret

Types of Intellectual Property Protection

Type

Covers

Rights

Terms

Examples

Patent

Device, process,
composition of matter

Inventor

20 years

Copyright

Material form of
composition

Author,
creator

Authors life + 50
years

Books, software,
music

Trademark

Identifiable mark

15 years (renewable)

Logo, slogan

Plant Breeder
Rights

Variety of plant

Breeder

18 years

Quantum
Canola

Industrial
Design

Aesthetic design of
product

Designer

10 years

Rug, cutlery
design/shape

Integrated
Circuit
Topography

Integrated 3D design in
semi-conductors

Designer

10 years

Custom chips

Trade Secrets

Anything

n/a

Indefinite

Secret sauce,
coca-cola recipe
Slide 9

Patent
Patent is a monopoly right granted by the State to an inventor for a limited
period,
in respect of the invention, to the exclusion of all others.
What can be protected by Patents?

Ans: Patent protection applies to inventions only. For an invention to be

patentable it must be:
An process, machine, manufacture or composition of matter or an
improvement to such that is:
Novel
Useful, and
Non-obvious
According to the Indian Patent Act, a patentable invention is defined as
a new product or process involving an inventive step and capable of industrial
application.

Patent
Novelty means that:
at least one aspect of the invention is novel
the invention is a combination of known elements not
previously seen together
new use for an existing product
Non-obvious means that:
Is the invention obvious based on what has already been
done or is there a degree of inventiveness or cleverness
involved?

Patent
Why patent be given?

If the invention is commercially utilized, the patent ensures just reward in terms
of money and recognition for the inventor, for all the time and effort, knowledge
and skills, money and other resources invested to come up with the invention.

For the society, commercial exploitation of an invention means newer and better
products, higher productivity, and more efficient means of production.

Further research and development on the patented technology..

A patent system encourages technological innovation and dissemination of

technology. This in turn stimulates growth and helps the spread of prosperity and
better utilization of resources.

Patent
Is patent territorial or international?
Patent is granted by a State and hence has territorial applicability. That is, it is valid
only in the country, which grants the patent. There is no mechanism to obtain a global
patent and you Have to apply separately in all the countries where you want the
invention to be protected.

What about Patent Cooperation Treaty (PCT) of WIPO ?

There were 123 countries, party to the PCT as on October 15, 2003. India joined the
PCT on December 7, 1998. Under the PCT, one international application for patent on an
invention can be filed in any country party to the PCT, designating other PCT countries
where the patent is sought. The effect of it is that the patent in a designated state, when
granted, will have the same priority date as for the first international application. However,
in each designated country, a separate application for patent is to be filed as per the
requirements of that country. Each country has to examine the application independently
for granting a patent.

Patent
The law relating to patents in India is governed by Indian Patents Act, 1970 as
amended by Patents (Amendment) Act, 1999 and Patents (Amendment) Act, 2002,
which came into force with effect from May 2, 2003. In our discussion, we will refer
to this act as the Indian Patents Act (IPA).
prior art or state of the art.
For example, an inventor in England was denied the patent for an
improved design of
a ballpoint pen just because he had published its details prior to filing
the patent
application and hence the invention did not qualify on the ground of
novelty.

Patent
What is Not Patentable?
The main categories, which do not qualify for patentability under the IPA are:

An invention, whose use could be contrary to the public order or morality or which causes
serious prejudice to human, animal or plant life or health or to the environment.
For example, a new type of gambling machine

Inventions relating to atomic energy. This is so because the Central Government has the sole
responsibility for the development of atomic energy and for obvious reasons will not like its
programmes to be hampered by patent claims.

Patent

The mere discovery of a scientific principle or the formulation of an abstract theory.

For example, a discovery merely unveils a hidden thing; it does not involve an act that makes
it useful; it is therefore not an invention and hence not patentable.

Similar reasoning applies to the formulation of an abstract theory.

Discovery of any living thing or non-living substances or objects occurring in nature;

A substance obtained by a mere admixture of the components, or a process of producing such

mixture;

An invention which is frivolous or which claims anything obviously contrary to well

established natural laws.
For example, an invention that claims a perpetual motion machine will not be patentable
because the claim would be contrary to well-established laws of nature.

Patent
Mere arrangement or rearrangement or duplication of known devices, each functioning
independently of one another in a known way without changing the end results;
An invention which in effect is traditional knowledge;
A mathematical or business method or a computer programme per-se or algorithms.
Besides these rather obvious items the following items are also not inventions within
the meaning of the Patents Act, as a matter of policy and are therefore, not patentable:
A method of agriculture or horticulture;
Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or
other treatment of human beings and animals;
Plants and animals in whole or part thereof other than micro-organisms;

Patent
Seeds and biological processes for production of plants and animals;
The following two categories belong to different fields of intellectual property and are
not subject matter of patents:
A literary dramatic, musical or artistic work including cinematographic work and television
productions (covered by copyright);
Topography of integrated circuits (separate field).
In the case of substances falling within certain categories no claim for patenting the
substance can be entertained; however, claims for the methods or processes of
manufacture of these substances can be patented. Such categories of substances are:
Substances which could be used as food or medicine or drug;
Substances prepared or produced by chemical processes (which include biochemical,
biotechnological and microbiological process).

Patent
However a claim for patenting a substance can be entertained if the substance itself is
intended for use as medicine or drug excepting chemical substances which are
ordinarily used as intermediates in the preparation or manufacture of any medicines.
Computer programmes and microorganisms have emerged as two special Categories
where patent protection is increasingly sought.
Under the Indian law, computer programmes are protected under the Copyright Act,
1957; they are not entitled to protection through patents. However, the British law
recognizes that under certain circumstances Computer programme can be patented.
Such will be the case when a computer programme enables the computer to carryout
a system that produces a required result. A computer so programmed is a modified
equipment to operate in a new way and as such the computer, along with the
programme is patentable.

Patent
In 1980, the US Supreme Court granted a patent to Dr. Ananda Chakraborty for a
genetically engineered bacterium, which could degrade oil spills. It did not exist in
nature. It satisfied the criteria of novelty, non-obviousness and utility for a patentable
invention. For the first time in history a living entity, the engineered microorganism,
was accorded the status of a product. In the same year, the US Patent office granted a
patent to Dr. Stanley Gohen and Dr. Herbert Boyer for the method and composition
for replication of exogenous genes in micro organisms though the criterion of
Nonobviousness was not considered in many countries as clearly satisfied
It may be mentioned here that patent protection involving living entities bristles
With serious ethical and legal issues and even the USA could not grant patent
protection to the creation of the animal clone that resulted in the birth of Dolly, the
cloned sheep.

Who can Apply for

Patent & How?
If the inventor is employee of an organization, the inventions made during
the employment would be patentable in the name of the employee.
However, the ownership of the patent (i.e. rights of using, manufacturing,
selling etc.) will be dependent on the terms of contract between the
employee and employer. It is a common practice in the R&D
organizations to keep the ownership rights with the employer though the
patent is in the employees (inventors) name.
Filing a Patent Application
Filing of Provisional and Complete Specification
priority date
Publication of the Application( after 18 months w.r.t date of filling or date
of priority which one is the earliest)
Opposition to the Grant of Patent(within 4 month)
Examination of the Application(request with 12-48 months of filling)
Grant and Sealing of Patent(on request)

Rights of a Patentee
Right to exploit the patent
Right to grant license (A license or an assignment to be valid must be in
writing and registered with the Controller of Patents.)

Right to surrender(The Controller, before accepting the offer of surrender

will advertise the same so as to give an opportunity to the interested parties to
oppose the offer of surrender.)

Right to sue for infringement

Limitations on
Patentees Rights
Any patented product or process or a product made using patented process
may be used by or on behalf of the Government for its own use only - an
invention is said to be used for the purposes of Government if it is made,
used, exercised or vended for the purposes of the Central Government, State
Government or a Government undertaking;
a patented article or article made by use of patented process may be used by
any person for experiment, research or for imparting instructions to pupils;
In case of a patent in respect of any medicine or drug, the medicine or drug
may be imported by the Government for its own use or for distribution in
any dispensary, hospital or other medical institution maintained by or on
behalf of the Government.

Acquisition of patents and inventions by Central Government

If the Central Government is satisfied that it is

necessary for public purpose to acquire an
invention for which a patent has been granted or an
application for patent has been filed, it can publish
a notification in the official Gazette and all rights in
respect of the invention stand transferred to the
Central Government. The Central Government will
be liable to pay compensation to the applicant or
the patentee as may be mutually agreed upon.

Compulsory licences
The IPA, provides for compulsory license of patent to a third party by the Controller,
on application made at any time after expiry of three years from the date of sealing of
the patent, on the following grounds:
The reasonable requirements of the public with respect to the patented invention
have not been satisfied;
The patented invention is not available to the public at a reasonably affordable price;
The patented invention is not worked in India.
The IPA also has special provision for compulsory licenses on notifications by the
Central Government in a case of national emergency, or of extreme urgency or of
public non-commercial use.

Compulsory licences
1. In deciding on the application, the controller is required to take
into account several factors including the nature of the invention,
the time which has elapsed since the sealing of the patent, the
measures taken by the patentee to make full use of the invention,
the ability of the applicant to work the invention to the public
advantage, and the applicants capacity to take capital risk
2. A compulsory license can be terminated on patentees request
when the circumstances in which the grant was made no longer
exist and are unlikely to recur. The holder of the compulsory
license can of course object to the application and the Controller
shall take into account that the licensees interest is not unduly
prejudiced.

Revocation of Patents
For a patent under a compulsory licence, the Central Government or any
person interested can make an application after the expiration of two years
from the date of compulsory license for revocation of the patent. The grounds
for the revocation would be:
The invention has not been worked in India
The reasonable requirements of the public have not been satisfied
The invention is not available to the public at reasonable price.
The controller, after giving opportunities to the patentee to oppose the
application, may decide on revocation on merit.

TRANSFER OF PATENT
A patent is an exclusive property of the inventor and hence can be
transferred from the original patentee to any other person by
assignment, grant of licence, or operation of law
The IPA requires that an assignment, licence or a creation of any other
interest in a patent must be in writing, clearly specifying all the terms
and conditions governing the rights and obligations of the parties. This
document must be registered in the prescribed manner within the
prescribed time. The person getting such entitlement in a patent has to
apply in writing to the Controller for the registration of the title.

TRANSFER OF PATENT
Assignment

An assignment means transfer of interest in the patent by the patentee to another

person in whole or in part valid over entire or a part of India. The person to
whom the right in patent is assigned is called the assignee and the person who
assigns the right is called the assignor.

There are three kinds of assignment

Legal assignment(Register of Patents maintained by the Patent Office as

the proprietor of the patent)
Equitable assignment(by a document (e.g. a letter), and not by an agreement)
Mortgage(When the patentee transfers the patent rights either wholly or in part to
the mortgagee to secure a specified sum of money, such assignment is called
mortgage. The patentee can get the patent re-transferred on refund of the
consideration money.)

Licence
A licence confers a privilege on another person through an agreement
to make, use or exercise the invention. The person to whom the
privilege is transferred is called the licensee. The licence agreement
does not transfer any interest in the patent. A licence merely transfers
a right in patent as compared to an assignment in which there is
transfer of interest.

There are three kinds of licences:

Voluntary licence
Statutory lice
Exclusive licencence

Licence
Voluntary licence
When the patentee, by a written agreement, empowers another person to make, use or exercise the
patented invention in a particular manner and on agreed terms and conditions it is called a voluntary
licence. The Controller of Patents and the Central Government do not have any role in such licence.
Statutory licence
When the licence is granted by the Controller and the Central Government as a compulsory licence it
Is termed as statutory licence. In this case, the terms and conditions of the licence agreement do not
depend upon the will of the patentee and the licensee.
Exclusive licence
In case of exclusive licence, the patentee confers exclusive right to make, use, sell or distribute the
patented invention to a particular person to the exclusion of all others. Such a person will hold an
exclusive licence in the patent. The exclusive licensee has the right to initiate infringement proceedings
against an infringer. The patentee has the right to impose certain restrictive conditions on the rights of
the licensee. But no such restrictions can be imposed which are against the public interest.

Licence
Another mode of transmission of
patent by operation of law is
provided where the Central
Government acquires a patent from
the patentee for public purpose.

INFRINGEMENT OF
PATENT
The following acts of the defendant can amount to infringement:

Colorable imitation of patented invention;

Copying essential features of patented invention;
Variation of non-essential features of patented invention;
Chemical or mechanical equivalents.

The period of limitation for instituting a suit for infringement is 3 years from
the date of infringement. However, it is not necessary to send a notice of
infringement to the defendant before filing the suit for infringement.

Relief in Suit for Infringement

The patentee, on being successful in a suit for infringement is entitled to an

Injunction
damages or accounts,
otherwise.

Injunction is a normal remedy, though discretionary on the part of the Court. It stops the
Infringement during the pendency of the proceedings.
Damages account for the loss in money terms suffered by the owner of the patent due to
infringement. Accounts relates to the account of net profits earned by the defendant (infringer).
Damages and Accounts are alternative remedies; the owner can chose only one of them, not both.
Otherwise as a remedy is a general provision which authorizes the court to grant such other
reliefs as it may deem necessary for complete redressal of the complaint. For example, the court
may order that the infringing goods or materials and implements shall be seized, forfeited or
destroyed.

Indias plant variety protection and

Farmers Rights Act, 2001
The 1986 GATT Round, popularly known as the Uruguay Round, brought in new
elements into the trade discussion, especially relating to agriculture (Box 1). One of
the most controversial agreements of the Uruguay Round is that relating to the
granting of Intellectual Property Rights on biological materials embodied in the
Trade Related Intellectual Property Rights (TRIPS) chapter. TRIPS specifically
requires member nations to grant patents on microorganisms, non/biological and
microbiological processes as well as effective IPR protection for plant varieties.

TRIPS provides a choice for protecting plant varieties. Members may choose from
patents, a sui generis system or a combination of the two. Most developing
countries including India have decided not to have patents for plant varieties
and have chosen the sui generis option instead. The sui generis system
(translating roughly into self generating)means any system a country decides
on, provided it grants effective Plant Breeders Rights.

Indias plant variety protection and

Farmers Rights Act, 2001
The Indian legislation succeeds in balancing the rights of Breeders and Farmers
and exploits the flexibility granted in TRIPS, in an intelligent manner. There are
clauses to protect the rights of researchers and provisions to protect the public
interest.

Breeders rights

Breeders can claim IPR, provided their varieties are novel, distinct, uniform and
stable.
This IPR comes as a Plant Breeders' Right - an exclusive right to produce, sell,
market, distribute, import or export the variety.

Scope of this right include

Term of 18 years (trees and vines) and 15 years (extant varieties & other fields).
Allows usage of variety for conducting research - Breeders' exemption .
Discourages protection where contrary to public health.
No protection for any genera or species involving genetic use restriction and
terminator technology.

Indias plant variety protection and

Farmers Rights Act, 2001
Rights of researchers
Allows scientists and breeders to have free access to registered varieties for
research. The registered variety can also be used for the purpose of
creating other, new varieties. The breeder cannot stop other breeders from
using his/her variety to breed new crop varieties except when the registered
variety needs to be used repeatedly as a parental line.

The Patent Second Amendment

Act, 2002
It is the Patent Second Amendment Act that makes distinct concessions to the
Biotechnology sector and the breeding of transgenic crops. According to this Act,
process patents will be allowed on microbiological, biochemical and biotechnological
processes. Meaning methods of genetic engineering, processes in the pharmaceutical
industry using microorganisms and related processes will be patentable.

what constitutes a patentable process

Processes and methods for making plants resistant to disease and for increasing their
value or the value of their products, will be patentable.

Indias plant variety protection and

Farmers Rights Act, 2001
Farmers rights
The farmer . . . shall be deemed to be entitled to save, use, sow, resow,
exchange, share or sell his farm produce including seed of a variety
protected under this Act in the same manner as he was entitled before the
coming into force of this Act.;
Provided that the farmer shall not be entitled to sell branded seed of a variety
protected under this Act.

Explanation: For the purpose of clause (iii) branded seed means

any seed put in a package or any other container and labelled
in a manner indicating that such seed is of a variety protected
under this Act.

Farmers Rights
Breeders wanting to use farmers varieties for creating (Essential Derived Variety)
EDVs cannot do so without the express permission of the farmers involved in the
conservation of such varieties. Anyone is entitled to register a communitys claim
and have it duly recorded at a notified centre. This intervention enables the
registration of farmer varieties even if the farmers themselves cannot do this due to
illiteracy or lack of awareness. If the claim on behalf of the community is found to be
genuine, a procedure is initiated for benefit sharing so that a share of profits made
from the use of a farmer variety in a new variety goes into a National Gene Fund.
Part of Farmers' act
GURT (terminator) forbidden
Protection against innocent infringement
Exemption from fees
Protection against bad seed
Compulsory license

Biotechnology patents
The Dimminaco case was related to a process for the preparation of a live vaccine for
protecting poultry against Bursitis infection. The Controller of Patents had refused the
application for grant of patent on the ground that the vaccine involved processing of certain
microbial substances and contained gene sequence. The Controller had decided that the said
claim was not patentable because the claimed process was only a natural process devoid of
any manufacturing activity and the end-product contained living material.
The Honble High Court held that the word manufacture was not defined in the statute
therefore, the dictionary meaning attributed to the word in the particular trade or business
can be accepted if the end product is a commercial entity. The court further held that there
was no statutory bar in the patent statute to accept a manner of manufacture as patentable
even if the end product contained a living organism. The court asserted that one of the most
common tests was the vendibility test. The said test would be satisfied if the invention
resulted in the production of some vendible item or it improved or restored the former
conditions of the vendible item or its effect was the preservation and prevention from
deterioration of some vendible product. The court further stated that the vendible product
meant something which could be passed on from one man to another upon transaction of
purchase and sale. In other words, the product should be a commercial entity.

Biotechnology patents
Patents (Amendment) Act, 2002 where biochemical, biotechnological
and microbiological processes were included within the scope of
chemical processes for the grant of patent. The definition of
invention was also changed to any new product or process involving
an inventive step and capable of industrial application thereby
deleting the word manner of manufacture as mentioned in the
earlier Act.
India joined the Budapest Treaty on the International Recognition of
the Deposit of Microorganisms for the Purposes of Patent Procedure on
17th December 2001. Consequently, section 10 of the Act was
amended in 2002 to provide for deposition of the biological material
and its reference in the patent application in case the invention relates
to a biological material which is not possible to be described in a
sufficient manner and which is not available to the public. The Patents
Act, 1970 was amended by the Patents (Amendment) Act, 2005 paving
the way for the grant of product patents in any field of technology

BIODIVERSITY

The Biological Diversity Act, 2002 (hereinafter referred to as BD Act) provides a

mechanism for access to the genetic resources and benefit sharing accrued
therefrom. It prescribes that obtaining IPRs from the utilization of biological
resources in India is subject to the approval of the National Biodiversity Authority
To facilitate this access and benefit sharing and in order to prevent any
unauthorized use of the biological resources of India, in 2005 suitable amendments
were made , wherein disclosure of the source and geographical origin of the
biological material was made mandatory in an application for patent when the said
material is used in an invention. In addition, a declaration by the applicant
regarding the required permission from the competent authority was inserted .

TRADITIONAL KNOWLEDGE
RELATED INVENTIONS
SECTION 3(P)
According to Section 3 (p) of the Act, an invention which, in effect, is
traditional knowledge or which is an aggregation or duplication of
known properties of traditionally known component or components
is not a patentable subject matter.
ILLUSTRATIVE EXAMPLE:
Claim: Serum of pigeon possessing the anti-paralysis activity.
Analysis: The use of pigeon serum for the treatment of paralysis (as
it possess anti-paralytic activity) is a traditional knowledge in India
or is an aggregation or duplication of known properties of
traditionally known component. It is clearly evident from D1
(Mahawar et al., Animals and their products utilized as medicines
by the inhabitants surrounding the Ranthambhore National Park,
India, Journal of Ethnobiology and Ethnomedicine, 2006, 2:46, see
entire document especially Table I), which discloses the use of
pigeon blood for treating paralysis.

Patent rights on microorganism

With effect from 20 May 2003 India has started granting patents
in respect of invention related to microorganisms, though India
was not obliged to introduce laws for patenting microorganisms
per se before 31 December 2004. Microorganisms patenting was
earlier considered to be a product patent, the period of
protection was five years from the date of grant or, seven years
from the date of filing of application for patent.
Now grant of patents for microbiological inventions is for a
period of 20 years from the date of filing. India (or developing
countries) does not allow patenting of microorganisms that
already exist in nature as the same is considered to be a
discovery according to the provisions of the section 3(d).
But genetically modified versions of the same microorganisms
that result in enhancement of its known efficacies and process
of syntheses of that microorganisum are patentable. The grant
of patent in respect to microorganisms depends upon the
regulations concerning the requirements for the deposition of
microorganisms under the Budapest Treaty of which India has
become a member, and accessibility of that microorganism from
the depositories.