General Information About Intellectual Property in India

Structure and Organization of Patent Office

Ministry

Ministry of Commerce and Industry

Competent Administration

Office of the Controller-General of Patents, Designs and Trademarks

Web Site Address

www.ipindia.nic.in

Address

Boudhik Sampada Bhawan,
S.M.Road, Near Antop Hill Post Office,
Antop Hill, Mumbai I - 400 037

Telephone

022-24123311

Telefax

022-24123322

E-mail

mumbai-patent@nic.in

Title

Controller General of Patents, Designs & Trade Marks

Name of Head

Shri (Mr.) S.Chandrasekran

Name of Deputy Head

Shri M.A. Haafeez

Info Last Updated

From web site as of 10/11/06

Background of Patent Law in India

India has a first-to-file patent system (as opposed to first-to-invent).  In the recent batch of changes to Indian patent law, the novelty requirement was made absolute, both in respect of prior publication and prior use of the invention, anywhere in the world. “Inventive step” has been redefined as “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”.

What is patentable:  Products such as novel compositions, drugs, chemicals, agrochemicals, food and new microorganisms. 

What is not patentable:  mathematical methods, business methods, computer program per se and algorithms remain unpatentable. Technical application of computer program software in industry and software in combination with hardware which were briefly patentable under the Patents (Amendment) Ordinance 2005, have now been omitted in the new Law (see next section) thereby reinstating the earlier “prohibition” against patentability of computer program/software per se.  New use of a known compound or new form of a known chemical entity will not be patentable, unless such new form exhibits higher efficacy.

India has a research use exemption: (“a patented invention can be made or used for the purpose merely of experiment or research”).  India became member of the PCT December 7, 1998.

The Intellectual Property India web site (http://www.patentoffice.nic.in/ipr/patent/patents.htm) is quite comprehensive.  It has a number of useful links, including:

  • History of Indian Patent System
  • PCT Applications (address info and fees)
  • Publications (publications about patent and patent practice)
  • Manual of Patent Practice and Procedure
  • Address of Patent Offices
  • Jurisdiction of Patent Offices
  • Patents Acts
  • Notification
  • Patent Rules
  • General Information Booklet for filing of Patent applications
  • Patent Agent information

However, it does not include a patent search tool of any kind. Searches can be set up through a contact with one of the main or branch patent offices, which are in Delhi, Mumbai, Chennai and Kolkata.

Recent Changes in Indian Patent Law

The McKay and Krovishik publication “Recent Developments in Indian Patent Law” (presented May 3, 2006; attached) provides a comprehensive overview of recent changes Indian patent law.  Patent law in India changed significantly in 2005  in order to be compliant with the TRIPS Agreement.  Some of the most significant changes were:

  • Pharmaceutical products are now considered to be patentable subject matter. 
  • Computer software is no longer patented subject matter, even if it is embedded in hardware.
  • Indian residents are prohibited from filing for a patent outside of India, unless they first file for the same invention in India, or if they obtain permission to do so six weeks in advance.
  • A Traditional Knowledge Digital Library documenting centuries-old healing remedies and medical treatments in order to prevent patenting of ancient indigenous practices and techniques was created.

These changes were quite controversial.  Prior to 2005, only the process of making a pharmaceutical product could be protected by a patent.  Therefore, pharmaceutical companies developed alternate processes to make the pharmaceutical products that were patented in other countries.  This created a large, thriving generic drug industry that may be dramatically affected by these changes.  Further, the changes are retroactive to 1995, and producers of pharmaceutical products may now seek patent protection for drugs that were produced between 1995 and 2005.  This has created a backlog of around 8,000 drug product patent applications.

With regard to the change in software patentability, the Indian patent office previously allowed  patent claims to computer software if it was incorporated into hardware.  Currently, computer programs, without exception, are excluded from patentability.

Availability of Patent Data and Patent Search Capability

Indian patents may be searched via the Ekaswa-A and Ekaswa-B databases for a fee ($50 US or Rs2000; valid for 1 year).  A CD-ROM package may also be purchased.  The package includes two disks each quarter, and costs Rs3,500 (~102 AUD)  The Ekaswa - A Database includes patent applications filed in India as published in the issues of the Gazette of India (Part III, Section 2) from January 1995 onwards.  The Ekaswa - B Database includes patent applications notified for opposition in the Gazette of India (Part III, Section 2) published from January 1995 onwards.

The Ekaswa search tool is maintained by the Patent Facilitating Centre (PFC), which is an autonomous organization that was set up by Department of Science and Technology under Technology Information Forecasting and Assessment Council (TIFAC) in 1995.

The only other way to search appears to manually search the Indian Patent Gazette. It is possible to conduct single field searches (http://patinfo.nic.in/main.php) and patent bibliography searches (http://patinfo.nic.in/allbib.php).

The Ekaswa search interface does not appear to allow text searching, with the exception of text in the titles.  Without registering for the service, you can perform searches and see a table of results, but you can’t select patents (or applications) for viewing without logging in. 

Plant Breeders Rights

India has a sui generis plant variety rights system.  In 2001, the Indian Parliament passed the Plant Variety Protection and Farmers Rights Act, which grants rights to new varieties of seeds, and provides a provision for Farmer’s rights. The Farmer’s Rights allow farmers to sell protected seed.  According to the UPOV, India has initiated with the Council of UPOV the procedure of becoming a member of the union but has not yet become a member.  The Indian system allows farmers to save seed.  GURT is banned in India.

Comments (0)