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The Patents (Modification) Act, 2002 was handed by Parliament in Might, 2002 and notified in June, 2003. The Act has been made efficient from Might, 2003 and has led to lot of adjustments.
Salient Options:
The salient options of the Patents (Modification) Act 2002 are as follows:
A. Modification of time period invention:
The Sec. 2 (1)(j) of Patent (Modification) Act 2002, defines the time period “invention” as “a brand new product or course of involving an ingenious step and able to industrial software” The place “Ingenious step” means a function that makes the invention not apparent to particular person expert within the artwork.
Earlier “invention” means any new and helpful –
(i) Artwork, course of, technique or method of manufacture;
(ii) Machine, equipment or different article;
(iii) Substance produced by manufacture;
and consists of any new and helpful enchancment of any of them, and an alleged invention.
B. Examination of software (Sec. 11(b)):
India has opted for a deferred examination system. This implies the Controller is not going to provoke examination of the applying. Examination of an software will now be taken up solely upon request by applicant or within the Kind 19 with charges of Rs.1000 for particular person applicant or Rs. 3000 for authorized entity aside from a person, on the applicable workplace of the Patent workplace (Rule 24).
The request is to be made inside forty-eight months from the applying submitting date. The place an software was filed previous to Might 20, 2003 (i.e. earlier than the graduation of the Patent (Modification) Act 2002), a request for examination is required to be made inside a interval of twelve months from Might 20, 2003 or forty-eight months from the submitting date, whichever is later. Upon failure to request examination, the applying shall be handled as withdrawn by the applicant. The applicant or brokers may withdraw the applying at any time (earlier than the grant of the patent) after submitting the applying.
C. Publication/Notification of the Software (Sec. 11 (a)):
After the expiry of 18 months from the date of submitting or the date of precedence whichever is earlier, the Controller will notify the contents of the purposes falling throughout the provision within the Gazette of India Half-III Sec.2 (Rule 25).
D. Time period of Patent (Sec.53):
The time period of patent has been enlarged to twenty years for present patents and patents granted on pending purposes. This time period is calculated from the date of submitting of the applying.
Earlier the time period of patent for technique or means of manufacture of substance (e.g. meals, medicines, medication and so forth.) was 5 years from the date of the sealing of the patent, or seven years from the date of patent whichever interval is shorter and in respect of some other invention, fourteen years from the date of the patent.
E. Burden of proof (Sec. 104 A):
The burden of proof in a continuing for course of patent infringement has been reversed and imposed on Defendant.
F. Charges (First Schedule):
The charges for submitting a brand new software for patents has been decreased from Rs. 1500 to Rs. 750 within the case of a person applicant and from Rs. 5000 to Rs. 3000 within the case of authorized entity.
G. Prohibition to use overseas (Sec. 39):
No particular person shall file an software or patent for an invention with out making use of in India or with out the written permission of the Central Govt. If the applicant just isn’t to safe a patent in India or the invention just isn’t patentable in line with the Indian law, he has to mandatorilly file an software for the stated invention and has to attend for the expiry of six weeks after submitting the applying after which solely file the corresponding software overseas for a similar invention.
H. Date of Patent (Sec. 45):
The date of each patent would be the date of submitting the applying for patent. In keeping with The Patent Act 1970, the date of patent was the date of submitting of full specification. The date of patent is essential to find out the time period of mum or dad.
I. Rights of patentee (sec.48):
The rights will be think about as adverse as a result of the rights of patentee, within the case of product patent, stop third events with out the consent of the patentee, from making, utilizing, providing on the market, promoting or importing into India and the rights within the case of course of patent, stop third events with out the consent of the patentee, from the act of utilizing that course of and providing on the market or promoting in India or importing for these functions the product acquire instantly by that course of, supplied that the product obtained just isn’t patentable below the Act.
J. The Powers of the Department Workplace (Rule 4):
The department workplaces of the Patent workplace have been vested with extra powers. Underneath Sec. 68 the actions akin to making a request of sealing of patents, registration of project (below Sec. 68) and so forth needs to be made within the applicable Department workplaces of the Patent workplace and never on the Head Workplace because the case earlier.
Okay. Appellate Board (Sec. 2 (1a)):
Enchantment Board appointed below the Commerce and Merchandise Marks Act 1999 shall be the Enchantment Board for functions of Patents Act. This Appellate Board hears and decides appeals from the choice of the controller. The Head Quarter of the Enchantment Board is to be in Chennai.
It’s clear that the definition of time period invention in Patent Act, 2002 has enlarged the scope of safety. The controller has additionally been vested with the facility to contemplate the query of obviousness of the invention disclosed whereas conducting the examination of software for contemplating the grant of a patent for the invention. On this context it must be famous that within the Patent Act, 1970 the Controller has no direct energy to contemplate the query of obviousness. The facility is just for the opponents whereas opposing the draft of patents below Sec. 25 of the Patent Act, 1970. The impact of this modification is that it will not be doable to get a patent for trivial modifications.
L. Time for putting the applying to ensure that acceptance (Sec. 21):
The time-frame for placing an software to ensure that acceptance subsequent to its first examination has been shortened to 12 months (non-extendible) from the date of First Examination Report (FER). The primary reply to the primary examination report is required to be made inside 4 months of the date of its issuance.
M. Unity of Invention (Sec. 10(5)):
The idea of ‘unity of invention’ has been broadened to incorporate a gaggle of innovations linked in order to type a single ingenious idea. The claims in a specification ought to relate to a single invention or a gaggle of invention linked in order to type a single ingenious idea. Now, by this modification it might be doable to assert multiple course of in a single software if these processes fall below one group and are carefully linked.
N. Digital Communication (Rule 6):
The paperwork will also be filed by digital transmission duly authenticated. In that occasion the doc must be clear, correctly addressed and mailed and its authentic needs to be submitted inside fifteen days from the date of receipt of communication. The drawings will also be filed electronically.
O. Assertion and Endeavor (Rule 12(4)):
For submitting the Assertion and Endeavor on Kind 3 a provision has been supplied to hunt extension past three months.
P. Declaration of inventor-ship (Rule13 (6)):
The declaration of inventor ship on Kind 5 must be filed together with the entire specification. An extension of 1 month past this era will be secured by submitting a request on Kind 4 with the charges Rs. 250/- pm if the applicant is a person or Rs. 1000/- pm if the applicant is a authorized entity.
Q. Summary (Rule 13 (a) to (d)):
Whereas submitting the applying accompanied with a whole specification, an summary of the invention most 150 phrases must be filed.
R. Software (Rule 20 (1)):
An software for patent comparable to Worldwide software (PCT software) needs to be filed on Kind 1 A.
S. Licenses of proper (Sec. 86 to 88):
The Provisions referring to “licenses of proper” deleted.
T. Restoration of lapsed patent (Sec. 60):
The time for submitting the request for restoration of the lapsed patent has been prolonged from one yr to eighteen months.
