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PATENTS ACT, 1970
39 OF 1970
An Act to amend and consolidate the law relating to patents. BE it enacted by Parliament in the Twenty-first Year of the Republic of India as follows:-
CHAPTER 1 : PRELIMINARY
SECTION 1 : Short title, extent and commencement
(1) This Act may be called the Patents Act, 1970.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint :
Provided that different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
SECTION 2 : Definitions and interpretation
(1) In this Act, unless the context otherwise requires,-
(a) "Appellate Board" means the Appellate Board referred to in Sec. 116;
(ab) "assignee" includes an assignee of the assignee and the legal representative of a deceased assignee and references to the assignee of any person include references to the assignee of the legal representative or assignee of that person;
(aba) "Budapest Treaty" mean the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure done at Budapest on 28.4.1977, as amended and modified from time to time
(ac) "capable of industrial application", in relation to an invention, means that the invention is capable of being made or used in an industry;';
(b) "Controller" means the Controller General of Patents, Designs and Trade Marks referred to in (section 73);
(c) "convention application" means an application for a patent made by virtue of (section 135);
"(d) "convention country" means a country or a country which is member of a group of countries or a union of countries or an Inter-governmental organisation
"referred to as a convention country in sec.133";
(e) "district court" has the meaning assigned to that expression by (the Code of Civil Procedure, 1908 (5 of 1908));
(f) "exclusive licence" means a licence from a patentee which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the patentee), any right in respect of the patented invention, and "exclusive licensee" shall be construed accordingly;
(h) "Government undertaking" means any industrial undertaking carried on-
(i) by a department of the Government, or
(ii) by a corporation established by a Central, Provincial or State Act, which is owned or controlled by the Government, or
(iii) by a Government company as defined in (section 617 of the Companies Act, 1956 (1 of 1956)) [;or], and ;
(iv) by an institution wholly or substantially financed by the Government;
(i) "High Court", in relation to a State or Union territory, means the High Court having territorial jurisdiction in that State or Union territory, as the case may be -
(j) "invention" means a new product or process involving an inventive step and capable of industrial application;
(ja) "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;
(l) "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 failed in public domain or that it does not form part of the State of the art;
'(la) "Opposition Board" means an Opposition Board constituted under sub-sec. (3) of Sec. 25;
(m) "patent" means a patent for any invention granted under this Act
(n) "patent agent" means a person for the time being registered under this Act as a patent agent;
(o) "patented article" and "patented process" mean respectively an article or process in respect of which a patent is in force:
(oa) "Patent Cooperation Treaty" means the Patent Cooperation Treaty done at Washington on the 19th day of June, 1970 as amended and modified from time to time;
(p) "patentee" means the person for the time being entered on the register as the grantee or proprietor of the patent;
(q) "patent of addition" means a patent granted in accordance with (section 54);
(r) "patent office" means the patent office referred to in (section 74);
(s) "person" includes the Government;
(t) "person interested" includes a person engaged in, or in promoting, re- search in the same field as that to which the invention relates;
(ta) "pharmaceutical substance" means any new entity involving one or more inventive steps.
(u) "prescribed" means,
(A) in relation to proceedings before a High Court, prescribed by rules made by the High Court;
(B) in relation to proceedings before the Appellate Board, prescribed by rules made by the Appellate Board; and
(C) in other cases, prescribed by rules made under this Act.'
(v) "prescribed manner" includes the payment of the prescribed fee
(w) "priority date" has the meaning assigned to it by (section 11);
(x) "register" means the register of patents referred to in (section 67)
;
(y) "true and first inventor" does not include either, the first importer of an invention into India, or a person to whom an invention is first communi- cated from outside India.
(2) In this Act, unless the context otherwise requires, any reference-
(a) to the Controller shall be construed as including a reference to any officer discharging the functions of the Controller in pursuance of (section 73);
(b) to the patent office shall be construed as including a reference to any branch office of the patent office.
CHAPTER 2 : INVENTIONS NOT PATENTABLE
SECTION 3 : What are not Inventions
The following are not inventions within the meaning of this Act,- (a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
(b) an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;"
(c) the mere discovery of a scientific principle or the formulation of an abstract theory ["or discovery of any living thing or non-living substance occurring in nature"];
(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or 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.
Explanation. For the purposes of this clause, salts, esters ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.
(e) a substance obtained by a mere admixture resulting only in the aggrega- tion of the properties of the components thereof or a process for producing such substance;
(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
(g)[* * * * *]
(h) a method of agriculture or horticulture;
(i) 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.
(j) plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
(k) a mathematical or business method or a computer programme per se or algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information;
(o) topography of integrated circuits;
(p) 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 4 : Inventions relating to atomic energy not patentable
No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of (section 20 of the Atomic Energy Act, 1962 (33 of 1962)) . (1)Inventions where only methods or processes of manufacture patentable. In the case of inventions-
(a) claiming substances intended for use, or capable of being used, as food or as medicine or drug, or
(b) relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi-conductors and inter-metallic com- pounds), no patent shall be granted in respect of claims for the Substances themselves, but claims for the methods or processes of manufacture shall be patentable.
(2)Notwithstanding anything contained in sub-section (1), a claim for patent of an invention for a substance itself intended for use, or capable of being used, as medicine or drug, except the medicine or drug specified under sub-clause (v) of clause(l) of sub-section(1) of Section 2, may be made and shall be dealt, without prejudice to the other provisions of this Act, in the manner provided in Chapter IV-A.
SECTION 5 : 5
[* * * * *]
CHAPTER 3 : APPLICATIONS FOR PATENTS
SECTION 6 : Persons entitled to apply for patents
(1) Subject to the provisions contained in (section 134) , an application for a patent for an invention may be made by any of the following persons, that is to say,-
(a) by any person claiming to be the true and first inventor of the invention;
(b) by any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application;
(c) by the legal representative of any deceased person who immediately before his death was entitled to make such an application.
(2) An application under sub-section (1) may be made by any of the persons referred to therein either alone or jointly with any other person.
SECTION 7 : Form of application
. (1) Every application for a patent shall be for one invention only and shall be made in the prescribed form and filed in the patent office.
"(1A) Every international application under the Patent Cooperation Treaty for a patent, as may be filed designating India, shall be deemed to be an application under this Act, if a corresponding application has also been filed before the Controller in India.".
(1-B) The filing date of an application referred to in sub-sec. (1-A) and its complete specification processed by the patent office as designated office or elected office shall be the international filing date accorded under the Patent Cooperation Treaty.
(2) Where the application is made by virtue of an assignment of the right to apply for a patent for the invention, there shall be furnished with the application, or within such period as may be prescribed after the filing of the application, proof of the right to make the application.
(3)Every application under this section shall state that the applicant is in possession of the invention and shall name the "person" claiming to be the true and first inventor; and where the person so claiming is not the applicant or one of the applicants, the application shall contain a declaration that the applicant believes the person so named to be the true and first inventor.
(4) Every such application (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) shall be accompanied by a provisional or a complete specification.
SECTION 8 : Information and undertaking regarding foreign applications
(1) Where an applicant for a patent under this Act is prosecuting either alone or jointly with any other person an application for a patent in any country outside India in respect of the same or substantially the same inven- tion, or where to his knowledge such an application is being prosecuted by some person through whom he claims or by some person deriving title from him, he shall file along with his application ["or subsequently "within the prescibed as the controller may allow" such period as the Controller may, for good and sufficient reasons, allow"]
"(a) a statement setting out detailed particulars of such application; and";
(b) an undertaking that,
"up to the date of grant of patent in india" he would keep the Controller informed in writing, from time to time,
["detailed particulars as required under"] clause (a) in respect of every other application relating to the same or substantially the same invention, if any, filed in any country outside India subsequently to the filing of the statement referred to in the aforesaid clause, within the prescribed time.
(2) At any time after an application for patent is filed in India and till the grant of a patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.
SECTION 9 : Provisional and complete specifications
(1) Where an application for a patent (not being a convention application or an application filed under the Patent Co-operation Treaty designating India) is accompanied by a provisional specification, a complete specification shall be filed within twelve months from the date of filing of the application, and if the complete specification is not so filed, the application shall be deemed to be abandoned.
(2) Where two or more applications in the name of the same applicant are accompanied by provisional specifications in respect of inventions which are cognate or of which one is a modification of another and the Controller is of opinion that the whole of such inventions are such as to constitute a single invention and may properly be included in one patent, he may allow one complete specification to be filed in respect of all such provisional specifications.
Provided that the period of time specified under sub-sec. (1) shall be reckoned from the date of filing of the earliest provisional specification.
(3)Where an application for a patent (not being a convention application or an application filed under the Patent Co-operation Treaty designating India) is accompanied by a specification purporting to be a complete specification, the Controller may, if the applicant so requests at any time within twelve months from the date of filing of the application, direct that such specification shall be treated, for the purposes of this Act, as a provisional specification and proceed with the application accordingly.
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