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Definitive changes

  • 30/03/2005

Definitive changes definition of invention
• "A new product or process involving an inventive step and capable of industrial application

• Inventive step means a feature that makes the invention not obvious to a person skilled in the art

• Capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry

definition of what cannot be patented
• an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

• an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

• the mere discovery of any new property or mere new use for a known substance or of the mere use of a known process, machine, or apparatus unless such known process results in a new product or employs at least one new reactant;

• plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties, species and essentially biological processes for production and propagation of plants and animals;

• an invention, which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.'

section 5: deleted. The amendment removes the exemption allowed to food, chemicals and pharmaceuticals for product patents. (In other words, the provision for process patents for these sectors has been removed)

section 22 to 24: deleted. These sections provided for the detailed publication of the patent application, prior to the grant of the patent. This information would be available in the public domain, for scrutiny by others, before the patent was granted. Under the proposed amendment, the patent office would be required only to release the initial publication; the name, the address of the applicant, what is sought for, and a small abstract; to the public domain. (Which means a change in basic procedure: now the detailed patent application does not have to be made public and therefore, people who have objections will never know, until the patent has been granted. This will reduce the transparency. In the situation we are in, with a weak and inexperienced patent office, combined with unclear provisions, this could lead to a situation of enormous misuse).

section 25 and 26, which concerns opposition to the patent, is substituted. some grounds for opposition include:

(a) Patentability including novelty, inventive step and industrial applicability, or (b) non-disclosure or wrongful mentioning in complete specification, source and geographical origin of biological material used in the invention and anticipation of invention by the knowledge, oral or otherwise available within any local or indigenous community in India or elsewhere, and the Controller shall consider and dispose of such representation in such manner and within such period as may be prescribed. (The change replaces the opposition procedure prior to the grant of this patent with a feeble provision).

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