A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or the process for producing that product for these purposes without his consent.

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Ever since the inception of the patent rights, many different justifications have been given in support of the patent system. The proponents of patent system have emphasized the natural rights of inventors to the products of their mental labour. While some have argued that the inventor’s contributions should be recognized by the grant of a reward, the most common theory put forth was related to the public benefits that flow from the grant of patent monopoly. These theories have been dominating discussion on the function of the patent system since the 19th century. In particular, it is believed that patents act as incentives to individuals and organizations to disclose information that would in turn constitute a substantive data base of technical information which may have otherwise remained a secret. This important function of patent system was reaffirmed by 1977 UK Patents Act and the European Patent Convention (EPC) which emphasized the need for the invention to be disclosed so that it can be utilised in public interest. Kitch emphasized the way in which the grant of patents could be analogized to the grant of mineral rights, giving the grantee an incentive to invest in the exploitation of the ‘prospect’. Further, the role that patent system plays in encouraging creation of inventions and implementation of the new industrial practices is realized since time immemorial.

Following table provides the chronological development of patent system all over the world:

                      COUNTRY                          YEAR
USA 1790
SPAIN 1826
TEXAS 1839
CHILE 1846
INDIA 1856
ITALY 1859


The United States’ patent system provides two kinds of patents: utility patents and design patents. Utility patents are employed to protect functional attributes of an invention. In contrast, design patents serve to protect ornamental aspects of an invention. Design patents are of great importance in inventions relating to consumer products.

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The criteria for obtaining design and utility patents are the same, as are the available remedies for their infringement. Like a deed to real property, most governments require a patent to specify the metes and bounds of the property claimed to constitute the invention. This legal description of the invention is found in the patent’s claims. Unlike real property whose borders can be measured with precision, the precise boundaries of an invention cannot be precisely determined. Thus, a patent often presents a set of claims of varied scope which extend inward from a broad description of the invention to a narrow description of the patent’s core invention.

The Indian Patents Act, 1970 provides patent protection in India. The same is in accordance with the provisions of the TRIPS Agreement. The recent conferment of “product patent” along with the “process patent” is an example of such compatibility. The protection to plant varieties has been excluded from the realm of patent law and a separate act has been made for that purpose. Further, the provisions of “international patent application” and “compulsory licenses” are also in conformity with TRIPS Agreement and Doha Declaration respectively. Thus, the interest of the public at large has also been taken care of by the Indian Patents Act, 1970 and there is no need of being panicked from the product patent of medicines. However, there is no need of a “further protection” to pharmaceuticals in the form of “Data Exclusivity” as the protection under the Patents Act, 1970 is not only sufficient but also in conformity with the TRIPS Agreement. The protection in the form of “Data Exclusivity” is a “TRIPS plus” provision to which Indian does not owe any obligation.

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Patent protection is territorial right and therefore it is effective only within the territory of India. However, it is possible to file an international application known as PCT application in India in the Patent Office of India. All these offices act as receiving offices for international applications.

There are three recommendations we make to narrow differences on intellectual property rights between the United States and India:

  • IP is an international issue, so it is critical to continue to keep the dialogue open between the United States and India through summits, forums, and task forces. There have been positive steps taken by Obama and Indian Prime Minister Narendra Modi, but progress needs to extend past the terms of individual leaders.
  • Developing and enforcing domestic legislation for intellectual property protection is key. The GIPC recommends that India address online piracy and goods counterfeiting. It also suggests stronger IP enforcement through civil remedies and criminal penalties.
  • To create a welcoming environment for innovators and encourage them to develop new products for the marketplace, the governments should encourage patenting so that Indian innovators could reap the financial awards resulting from their creativity.

In a recent brief filed before the United States Supreme Court, the US government argued that patents are not property. For those not in the know, this relates to a monumental constitutional challenge (Oil States Energy vs Green’s Energy Group) to a proceeding at the US patent office called the Inter-Partes Review (IPR), where third parties can contest the grant of a patent.

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Under US law, you cannot divest someone of private property rights without a jury trial. The challenger argues that the Inter-Partes Review is an internal patent review by the patent office that often results in patent invalidity, without the benefit of a jury trial.

The Indian government which claims in its newly minted CIPAM website that patents are indeed “property” where they state the following propositions in no uncertain terms:

  1. Intellectual Property (IP) means the property, which is created with intellect such as inventions, books, paintings, songs, symbols, names, images, or designs used in business, etc.
  2. IP is a property which cannot be touched or seen and is product of a person’s intelligence, hard work, and skill.
  3. IP, like any real property that i) can be bought, sold, licensed, exchanged, given away ii) The owner can prevent unauthorized use and can take legal action, in case someone else uses it without permission
  4. Legal rights conferred on such property are called “Intellectual Property Rights” (IPRs).”

The Supreme Court explicitly recognized that patents are property secured by the Fifth Amendment Takings Clause. In Horne v. Department of Agriculture, the Court held that the Takings Clause imposes a “categorical duty” on the government to pay just compensation whether it takes personal or real property. This overruled the Ninth Circuit, which had held that personal property receives less protection under the Takings Clause than real property.