US – Patent Cases – Weekly Update – September 24th – October 1st, 2013
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Patent Office India – Published Patent and Design registration Information – September 27th, 2013
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
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US – Patent Cases – Weekly Update – September 17th – September 24th, 2013
In an endeavour to keep patent enthusiasts abreast with the latest patent related activities in leading geographies, we provide a weekly update of patent cases filed in the US.
Patent Office India – Published Patent and Design registration Information – September 20th, 2013
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
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Significance of Seeking Permission To File Patent Applications Outside India
Introduction
A resident of India might be interested in filing a patent application outside India, driven by various reasons. In such a scenario, one may choose to:
1. File a patent application outside India without filing a patent application in India; or
39. Residents not to apply for patents outside India without prior permission-
(1) No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless—
(a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and
(b) either no direction has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked.
(2) The Controller shall dispose of every such application within such period as may be prescribed: Provided that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permit without the prior consent of the Central Government.
(3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.
Interpretation of governing statute
Even though not explicit from the above statute, our interpretation is that, the term “person” in the above section refers to “inventors” and not necessarily the “applicants” of the patent. Further, it shall be noted that, if at least one of the inventors who may be named in the patent application is a resident of India, then the above section is of relevance. Note that, a foreign citizen can be a resident of India, and likewise, an Indian citizen can be a resident of a foreign country. Hence, one will have to consider where the inventors are residing and not necessarily their citizenship, while applying the above section.
Further, one will have to procure a FFL if one of the inventors is a resident of India, and the first patent application is being filed outside India. It shall be noted that a PCT application, with the Indian Patent Office as the receiving office, can still be considered as a patent application filed outside India.
Another scenario in which FFL will have to be procured is when a patent application has been filed in India, and a subsequent patent application has to be filed within 6 weeks from the date of filing the Indian patent application. On the other hand, a FFL will not be required if 6 weeks have passed since the filing of the Indian patent application, and there has been no secrecy direction issued by the Indian Patent Office.
Obtaining permission to file the patent application outside India
A FFL can be obtained by disclosing to the Indian Patent Office the subject matter on which patent application is sought to be filed. The request is made in a particular form and a fee of INR 4000 (INR 1000 if applicant is a natural person) is applicable. The time within which the IPO grants permission is twenty one (21) days of filing the request. In cases the invention is related to defense or atomic energy, such permission may be denied by the IPO.
Consequences contravening section 39
Contravention of Section 39 can result in criminal liability under Section 118 and abandoning of Indian Patent Application or revocation of Indian Patent, if any, under Section 40.
Under Section 118, contravention of Section 39 shall be punishable with imprisonmentfor a term, which may extend totwo years, or with fine, or both. However, those in the known can provide examples of contravention of Section 39, but enforcement of penalties under Section 118 is yet to be seen.
Filing a national phase patent application in India after filing a PCT application
Precautions to be taken before filing a foreign patent application by Indian residents
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US – Patent Cases – Weekly Update – September 10th – September 17th, 2013
In an endeavour to keep patent enthusiasts abreast with the latest patent related activities in leading geographies, we provide a weekly update of patent cases filed in the US.
Patent Office India – Published Patent and Design registration Information – September 13th, 2013
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
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Determination of Obviousness/Inventive Step- Indian Approach
Patentability requirements
For an invention to be patentable:
- it has to be novel (new)
- it has to involve an inventive step (non-obvious)
- it has to be industrially applicable (can be made or used in an industry)
Indian defining of “Invention” – History and Evolution
First definition, 1972
“Invention” means any new and useful-
(i) art, process, method or manner of manufacture;
(ii) machine, apparatus or other article;
(iii) substance produced by manufacture.
and includes any new and useful improvement of any of them, and an alleged invention.
As can be seen above, the phrase “inventive step” was not even included in the definition.
Second definition, 2002
(i). “invention” means a new product or process involving an inventive step and capable of industrial application;
(ii) “inventive step” means a feature that makes the invention not obvious to a person skilled in the art.
The phase “inventive step” was included in the definition of “invention”. Further, the phrase “inventive step” was also defined.
Current definition, 2005:
(i). “invention” means a new product or process involving an inventive step and capable of industrial application;
(ii) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
The definition of the phrase “inventive step” was amended to broaden the scope of “inventive step”.
“Inventive Step” as laid by the Indian Patent Act
The term “inventive step” plays a vital role in deciding whether a patent should be granted to a proposed invention.
As per sec 2 (l) of the Patents Act, a new invention means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.
In 2005, India, for the first time, defined as to what constitutes an "inventive step" by incorporating a new provision in the definition section of the Patents Act. Section 2(1)(ja) of the Act defines "inventive step" to mean "a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art".
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries: Case Law Interpretation on Inventive step
This case can be considered to be the most important case in interpretation of inventive step in the Indian jurisdiction. Though the case was decided in 1978, the principles laid down in the case are followed even today and have been codified in the Indian Patent Act.
The plaintiff (Hindustan Metal Industries, a registered partnership firm carrying on the business of manufacturing brass and German silver utensils at Mirzapur) in this case claimed to have invented a device and method for manufacturing utensils, introducing improvement, convenience, speed, safety and better finish, in the old prevalent method which was fraught with risk to the workers, in as much as the utensils used to fly off from the headstock, during the manufacturing process. The plaintiff got the invention patented, as an assignee, under the Indian Patent and Designs Act, 1911 on May 6, 1951 with effect from December 13, 1951. In September1952, the plaintiff learnt that the defendant (Bishwanath Prasad Radhey Shyam, a concern carrying on the business of manufacturing dishes and utensils in Mirzapur) was using and employing the method under the former’s patent. The plaintiff served a notice upon the defendant asking him to desist from infringing the plaintiff’s patent and further claim damages for Rs. 3000. The validity of the patent was challenged by defendants on the ground of lack of novelty and inventive step and also filed a counter claim praying for the revocation of the plaintiff’s patent on the same ground. A division bench of a district court of Allahabad started its analysis of inventive step and after considering the prior art in the case, stated that the patented invention was merely an application of an old invention, known for several decades before the plaintiff’s patent, which was no more than a workshop improvement. The court as a result had issued the petition for revocation on the patent. The plaintitiff made appeals to a division bench of the High Court, where the appellate bench concluded that the method of manufacture did not involve any inventive step or novelty. Furthermore, as the invention was publicly used by the patent holder before the date of filing of the patent application, the Court observed that the novelty of the invention was negated. In the light of its analysis, the court concluded that the invention lacked novelty and inventive step.
Assessment of Inventive Step
If, a product or a process is novel, the next question that arises is "Is the approach obvious and if it not then what is the depth of the inventive measures taken by the inventor”. To determine obviousness is to find out whether the person, with ordinary skill in the art, would have come up with similar innovation for the technical problem under similar circumstances without being provided with the solution.
Since the Patents Act (1970) was brought into force, there have been a few cases in India that have dealt with the obviousness issue extensively. The Supreme Court held that obviousness has to be strictly and objectively judged. The Supreme Court further recognized that obviousness is something that is a natural suggestion of what was previously known.
A test to determine whether a document can negate the existence of inventive step is as follows:
Had the document been placed in the hands of a competent craftsman (or engineer as distinguished from a mere artisan), endowed with the common general knowledge at the 'priority date', who was faced with the problem solved by a patentee but without knowledge of the patented invention, would he have said, "this gives me what I want". To put it in another form: "was it for practical purposes obvious to a skilled worker, in the field concerned, in the state of knowledge existing at the date of the patent to be found in the literature then available to him, that he would or should make the invention the subject of the claim concerned?”
Novartis v. Union of India case law interpretation on Obviousness
Novartis filed an application for grant of patent for chemical compound called Imatinib Mesylate which is a therapeutic drug for chronic myeloid leukemia and certain kinds of tumours and is marketed under the names “Glivec” or “Gleevec” at the Chennai Patent Office on July 17, 1998. In the application it claimed that the invented product, the beta crystal form of Imatinib Mesylate, has more beneficial flow properties better thermodynamic stability and lower hygroscopicity than the alpha crystal form of Imatinib Mesylate and further claimed that the aforesaid properties makes the invented product novel. The patent application had attracted five (5) pre-grant oppositions in terms of section 25(1) of the Act. The Assistant Controller of Patents and Designs heard all the parties, on December 15, 2005, as provided under rule 55 of the Patent Rules, 2003, and rejected the appellant’s (Novartis) application for grant of patent to the subject by 5 (five) separate, though similar, orders passed on January 25, 2006 on the opposition petitions. The Assistant Controller held that the invention claimed by the appellant was anticipated by prior publication, i.e., the Zimmermann patent; that the invention claimed by the appellant was obvious to a person skilled in the art in view of the disclosure provided in the Zimmermann patent specifications. The Supreme Court of India rejected Novartis patent plea on April 1, 2013
Obviousness is judged based on the hypothetical construct of a "person of ordinary skill in the art". The person of ordinary skill in the art must:
- belong to the relevant field.
- look at the prior art from a position of his personality, considering his/her interest in risk taking.
- be well aware of the fact that even a small structural change in a product or in a procedure can produce dramatic functional changes.
India has been witnessing an increase in patent enforcement activities. Going forward, one can anticipate much more refined tests for determining the presence of inventive step in inventions. It is recommended that patent practitioner keep themselves educated about this fascinating topic of “inventive step/obviousness” and provide informed opinions.
You may be interested in reading our articles:
- Determination of Obviousness/Inventive Step by the European Patent Office
- Determination of Obviousness/Inventive Step in United states of America
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US – Patent Cases – Weekly Update – September 3rd – September 10th, 2013
In an endeavour to keep patent enthusiasts abreast with the latest patent related activities in leading geographies, we provide a weekly update of patent cases filed in the US.
Patent Office India – Published Patent and Design registration Information – September 6th, 2013
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office’s published patent information, Subscribe to this service free of cost
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License
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