India Patent - Govt notifies Draft Rules

The Department of Industrial Policy & Promotion, Ministry of Commerce and Industry on 24 June 2005 notified Draft Patents Rules 2005 which was published in the Gazette of India.

The Rules which are essentially procedural are prepared to make required changes consequent to the amendment to the Patents Act, 1970 by the Patents (Amendment) Act, 2005. The draft rules have been published for the information of all persons concerned and likely to be affected thereby and to invite suggestions/comments which will be taken into consideration before finalization and notification.

Indian Government has already met the December 31 deadline for complying with its obligation to World Trade Organisation (WTO) under TRIPs agreement, by promulgating an Ordinance - The Patent (Amendment) Ordinance, 2004 followed by the Act - Patent (Amendment) Act, 2005.

Under TRIPS, India was required to introduce product patent where only process patent was permitted. Procedural changes were also required to be made as per Patent Co-operation Treaty (PCT). The new Act ensures adequate safeguards against misuse of patent rights and vests enough power with the Government to intervene and ensure that patented inventions are available for the public at an affordable price.

In nutshell, the most important changes are:

Product Patent can be issued in respect of food, drugs and chemicals. Provisions of 'process patent' for these goods abolished.

Provisions in respect of EMR (Exclusive Marketing Rights) abolished.

Computer software per se is not patentable, but in combination with or embedded in hardware is patentable.

Provision of 'acceptance of specification' and its advertisement have been deleted.

Provision for pre-grant and post-grant opposition to the granting of a patent.

Application for patent will be published in Official Journal. At that time opposition can be made on limited grounds but hearing is not mandatory.

After grant of patent, opposition can be made within 12 months.

Provision of sealing of patent omitted.

Provision for acquisition of patent for public health purposes.

Suit for infringement of patent cannot commence before date of publication of publication of the application.

Penalties enhanced substantially.