Broadly speaking: Patent Right in India

Introduction

The concept of patent has been developed in recent past in India, in the era of technology and competition every country and human being is coming with different approach and manoeuvre. Where they evolve or invent novel product, this invention is endeavour of a single individual or group. It belongs to the person who invented or concoct it, a person protects their valuable by keeping the valuable in a safe custody, but human intellect cannot be kept safe in this way. To protect the creation of individual the Patent law has been introduced which safeguard the right of the inventor, who enjoy exclusive right over the formulation and invention. Without providing royalty to the inventor or their consent the method or idea cannot be used.

Previously to protect their invention person use to keep their invention unrevealed but with the growth of time and technology. This kinds of idea and creation has great value for human community and for the prestige of the country. The patent right introduce to protect the right of those individual.

India has privileged with abundance of natural resources and human intellect. From the very past India is known for his cultural diversity. India is the country with copious and plentiful natural resources and traditional knowledge over medicine and product which is use for the betterment of the country. As India is the country who believes and greatly emphasis upon welfare, as in India there is cultural diversity people possess different method and idea to use the natural resources for medicinal purpose.

Patent Right in India:-

To promote more invention it is imperative to protect their right and give them honour for the same. To safeguard the right of inventor certain right has been granted to them.

Not Patentable property

The mere discovery of any new property or new use for a known substance, or of the mere use of a known process, which results into a new product, can’t be considered as a patented product. THE SECTION 3(D) OF THE PATENTS ACT, 1970, prescribes the class of discovery, which cannot be subject matter of the patent.

In Novartis AG & Ors. V. Union of India & Ors.,[2] The Hon’ble Supreme Court discussed the meaning of the term “Efficacy” in detail. Efficacy, means the ability to produce a desired or intended result. The test of efficacy in the context of Section 3 (d), would be varying in respect of product under consideration is desired or intended to produce.

The mere discovery of a scientific principle or formulation of an abstract theory, of any living thing substance occurring in nature can’t be patented. AS PER SECTION 3 (C) OF THE PATENTS ACT, 1970, it becomes very purely interpreted that it can be highly recognized that the mere discovery in regards with the living substance, occurring in the nature cannot be patented.

Protection of Natural Resources from Theft and Commercial Exploitation

Bio piracy is the piracy of various valuable elements in the biosphere or the biodiversity. Bio piracy is the plunder of nature and its knowledge. Bio piracy refers to unauthorized use of biological resources and/or traditional communities’ knowledge on biological resources.[3]The bio piracy cases involving misappropriation and commercial exploitation of traditional knowledge and biogenetic resources.[4] The plant was not their discovery but the knowledge of the tribes that was used for their ultimate advantage.[5] As the process is known from the very long period of the time by the people of that Community inhabiting to the particular area where they were living and producing such medicine by their invention, which cannot be taken up the third party and that too with the similar result of medicine. Fauna and flora in their many beautiful and varied forms are an irreplaceable part of natural system which must be protected, conscious of the ever-growing value of fauna and flora from aesthetic, scientific and cultural and economic points of view.[6]

There from the concept of traditional knowledge defined by WTO used by the community for curing various flaws will be the ultimate holder of rights as an intellectual property.[7] People have known the medical properties of neem for many generations and the curing dermatological diseases in humans and in protecting agricultural plants form fungal infections. Since then, traditional India knowledge is in public.[8]

Sustain the natural resource

In order to protect the resource, the state through wildlife life protection, 1972 has the power to declare a land owned by the government to sustain the natural resource after having consultation with the local communities, particularly the areas adjacent to national parks and sanctuaries and those areas which link one protected area with another, as a conservation reserve for protecting flora and fauna in their habitat.[9] The court gives finding upon the case that using known knowledge or modifying the way of using of the product cannot be believed as discovery.

Convention on Biological Diversity-

The CBD under the United Nations Environment Programme became effective in 1993 with the objective of conservation of Biological Diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the utilization of the genetic resources.[10] The India legal position with respect to the Convention on Biological Diversity, brought up the act came to be known as Biological Diversity Act, 2002, therefore it as it is been regarded that for the access and utilization of any biological resource would require the permission of the National Biodiversity Authority, and the permission is inclusive of obtaining biological resources occurring in India or associated knowledge for –(i) Commercial Utilization, (ii) Bioutilization, (iii) Research, (iv) Applying for intellectual property rights.[11]

Conclusion: -

India is blessed with abundance of natural resources and has rich knowledge about medicinal plants. Now it is imperative to protect the traditional knowledge which is in practiced in the particular region from the ages. The use of turmeric and neem has been introduce in India their medicinal values were identified and exhibit to the world through India. As this knowledge is termed as traditional knowledge. India is the signatory country of the TRIPS agreement and part of many convention to protect as to protect the intellectual property right of the people. India has explicitly improving the patent law & safeguarding the rights.

The author Pragya Vaishnav is 4th year law student at Indore Institute of Law

1. Rai Diva, Patent laws in India : basics you must know, October 16, 2019
2. 2013 (54) PTC 1 (SC)
3. Case of misappropriation of traditional knowledge, page 75, para 2
4. KochanKaniKunjuramanKani v. MathevanKani Sankaran Kani, AIR 1971, SC 1398, (1971) 2SCC 345, [1971] Sipp SCR 786
5. Regional Deputy Director v. Zavaray S. Poonawala and ors, :2015(4)ABR82, 2015IV AD (S.C.) 671, 2016(4) CHN (SC) 236, 2015(5)FLT428, 2015-5-LW585,
6. 2015(3)RCR(Civil)583,2015(3)RCR(Criminal)172, 2015(5)SCALE184, (2015)7SCC347) (2016)3WBLR(SC)59.
7. Annexure II of World Trade Organisation, 1999
8. Case of Neem Patent (Azadiracha Indica) EPO Patent No. 436257
9. Section 36A (1), Wild life protection Act, 1972
10. Neerti Wilson, Guidelines for access and benefit sharing for utilization of Biological resources based on Nogoya protocol Effective, Journal of intellectual property rights, Volume 20, January 2015, pp 67-70.