Patents rights and anti- trust laws in India

Abstract

This paper will focus on mainly two topics. One is patent laws and another one is anti-trust laws in India under the Intellectual Property Rights. On April 20, 1972, the Patents Act 1970 and the Patents Rules 1972 took effect, repealing the Indian Patents and Designs Act 1911. In India, a patent may be applied to a new device or procedure that involves an innovative phase and is capable of industrial use. Within 48 months of the date of preference of the application or the date of registration of the application, a request for examination must be filed with the Indian Patent Office for examination of the application. Antitrust and intellectual property have historically had a tumultuous relationship. now that Major Tech companies are subject to antitrust laws, we can see that the government is taking steps to promote innovation rather than concentrating power in a few hands. This paper will focus on this in broaden terms. 

Keywords: Patent, Convention, Infringement, Copyright, Tribunal, Amendment. 

Introduction

On April 20, 1972, the Patents Act 1970 and the Patents Rules 1972 took effect, repealing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of Justice N. Rajagopala Ayyangar’s Ayyangar Committee Report. Allowing only method patents on inventions related to medications, narcotics, food, and chemicals was one of the recommendations.

Later, India signed a slew of international treaties with the aim of improving its patent law and aligning itself with the western world. Becoming a part of the Trade Related Intellectual Property Rights (TRIPS) scheme was a major step toward achieving this goal. On the 7th of December 1998, India signed the Paris Convention and the Patent Cooperation Treaty, and on the 17th of December 2001, it signed the Budapest Treaty.

Background

The Indian Patents and Designs Act, 1911, was passed in 1911, marking the beginning of the country’s patent law. The new Patents Act, 1970, came into effect in 1972, amending and consolidating the previous patent legislation in India. The Patents Act of 1970 was revised again in 2005 by the Patents (Amendment) Act, which expanded the scope of commodity patents to include food, medicines, chemicals, and microorganisms. The laws pertaining to Exclusive Marketing Rights (EMRs) have been revoked as a result of the reform, and a clause allowing for the issuance of a compulsory license has been included. Pre-grant and post-grant opposition clauses have since been added to the law.

In India, a patent may be applied to a new device or procedure that involves an innovative phase and is capable of industrial use. It must not, however, fall into the category of non-patentable inventions as specified by sections 3 and 4 of the (Indian) Patents Act, 1970. A patent application may be filed in India by the actual and first inventor or his assignee, either alone or jointly. 

Procedure for Grant of a Patent in India

Within 48 months of the date of preference of the application or the date of registration of the application, a request for examination must be filed with the Indian Patent Office for examination of the application. The claimant is granted the opportunity to respond to the concerns presented in the first test report after it is published. The applicant must meet the conditions within 6 months of receiving the first test report, which can be extended by an additional 3 months at the applicant’s request. If the claimant fails to comply with the conditions of the first inspection report within the specified time frame of 9 months, the submission is considered abandoned. The patent is granted and published in the Patent Office Journal after all appeals have been resolved and all conditions have been met.

Filing of Application for Grant of Patent in India by Foreigners

Since India is a signatory to both the Paris Convention for the Protection of Industrial Property (1883) and the Patent Cooperation Treaty (PCT) (1970), a foreign party may use either treaty to file a patent application in India.

If an application for a patent in respect of an invention has been filed in a Convention Country, the applicant or the legal agent or assignee of such individual can file a similar application for a patent in India within 12 months of the date on which the basic application was filed in the Convention Country, i.e., the home country. In this case, the priority date is the date on which the claim was filed.

Rights granted by a Patent

If a patent is granted for a product, the patentee has the power to prohibit anyone in India from producing, using, offering for sale, distributing, or importing the copyrighted product. If the patent is for a method, the patentee has the right to prohibit anyone from using the method, using the product directly obtained by the method, offering for sale, selling, or importing the product directly obtained by the method in India.

Infringement of Patent

In India, patent infringement litigation can only be started after the patent has been granted, but they can make an argument that dates back to the date of publication of the patent application. Infringement of a patent occurs when someone makes, imports, uses, offers for sale, or sells a copyrighted invention without permission in India. Only a tort suit may be filed before a court of law under the (Indian) Patents Act, 1970. Furthermore, a suit for infringement can be protected on a variety of grounds, including the grounds that a patent cannot be awarded in India, and dismissal of the patent can be sought based on such a defense.

Licensing and Assignment of Patent

It is legal to grant a patent or a stake in a patent, or to mortgage, license, or create some other interest in a patent. In the case of patents, an assignment is only binding if it is made in writing and the arrangement is reduced to the form of a declaration that contains all of the terms and conditions concerning the parties’ rights and obligations. The transferee must submit an application for registration in the specified format.

What is meant by anti-trust laws?                

Antitrust legislation was created by laws to protect consumers from unfair market practices. They ensure that honest competition remains in an open-market economy. These rules have developed in tandem with the economy, keeping an eye out for potential monopolies and threats to the efficient ebb and flow of competition. To put it another way, the aim is to defend consumers by fostering a competitive environment and taking action against monopolists. It comes from the word ‘confidence.’ A trust was created when shareholders of several corporations agreed to pass their shares to a single set of trustees.

This statistic depicts the true picture of how a few firms have taken over the industry, such as TATA MOTORS, which has approximately 68.4% of the vehicle market share. Other examples include Chinese companies MI (redmi, xiaomi), Oppo, and Vivo, which have begun to dominate the Indian smartphone industry. As a result, we learn that anti-competitive activities are common in India. But, since India lacks the mechanisms in place in developed countries to quantify and punish anti-competitive behavior, international countries have begun to dump Indian markets.

Antitrust and intellectual property have historically had a tumultuous relationship. Both tend to have distinct scopes at first sight. To keep the economy running smoothly, competition law controls markets where anti-competitive activities are taking place. IPR regulates the grant of a monopoly as well as the transfer of exclusive rights to the person who has it. The conflict arises from the need of innovators and businesses to protect their inventions from misuse by the consumer and other parties. There has been a significant rise in the number of lawsuits involving competition law and intellectual property rights. The CCI (Competition Commission of India) has also proposed that the goals of both areas overlap. In these two domains, there must be a compromise.

It is becoming more important to consider all laws in order to reach a compromise. The primary goal of intellectual property, according to a UNCTAD paper titled “Examining the interface between the goals of competition policy and intellectual property,” is to promote creativity by offering appropriate incentives. For this, innovators must be covered by special privileges granted to them to finance their R&D and build on the investments made in them by large corporations.

How and When Anti-Trust law need emerges in India?

The Sherman Act, enacted by the United States in 1890, made it unconstitutional to enter into an arrangement to create a monopolistic industry. Except that the oil rates do not get fixed up. If a business executive is unable to comply with the regulation, he or she will be punished. The corporation may face a hefty fine, and the executives may also face prison time. Following that, the Federal Trade Commission was created to keep an eye on whether any unfair trade policies were being used.

In India, the Monopolistic and Restrictive Trade Practices Act, 1969 was enacted first, but due to its shortcomings, the Competition Act, 2002 was completely enacted in 2009. The Executive and Judiciary have also established bodies such as the Competition Commission of India and the Competition Appellate Tribunal to carry out various functions in order to encourage competition.

According to Section 3 of the Competition Act of 2002, any anti-competitive arrangement relating to manufacture, procurement, sale, or other matters that has a significant adverse impact on competition is forbidden and invalid. Section 4 prohibits not domination but violence, which happens when dominance control is used in an exploitative way. The sentence levied by the Magistrate of Delhi for a breach of the Competition Act under section 42 Subsection(2) is imprisonment for a period of up to three years and a monetary penalty of twenty-five crores.

Conclusion 

As a result, we learn that anti-trust laws such as the Sherman Act of 1890 and the Competition Act of 2000 are designed to encourage competition and protect consumers in various countries. Many departments have been established to prevent monopolistic behaviour and encourage open enterprise among all institutions. Many well-known people have been sanctioned as a result of this rule, and severe penalties have been imposed. However, now that Major Tech companies are subject to antitrust laws, we can see that the government is taking steps to promote innovation rather than concentrating power in a few hands. The Indian government has to broaden laws and speed up judicial decisions so that no company is left behind and customers have access to a wider market. 

BY: ANANYA SHARMA

(First year law student, CHRIST (Deemed To Be University)

References 

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