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| EDITORIAL |
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| Year : 2016 | Volume
: 4
| Issue : 1 | Page : 1-2 |
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Indian patent act- What to know as health professional?
N Pandit
Professor, Department of Community Medicine, SBKS MI & RC, Sumandeep Vidyapeeth, Piparia, Waghodia, Vadodara, Gujarat, India
| Date of Web Publication | 29-Aug-2018 |
Correspondence Address:
N Pandit
Professor, Department of Community Medicine, SBKS MI & RC, Sumandeep Vidyapeeth, Piparia, Waghodia, Vadodara, Gujarat
India
 Source of Support: None, Conflict of Interest: None
DOI: 10.4103/2347-6486.240038
How to cite this article:
Pandit N. Indian patent act- What to know as health professional?. J Integr Health Sci 2016;4:1-2 |
A ‘Patent’ is defined as 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 or importing the patented product or process for producing that product for those purposes without his consent[1]. These rights are like the property right. Government is giving limited period exclusive right to the patentee for his/her product or process. The present patent act, 1970 came in force in year 1972 and modified as amendment in 2015.
As patent protection is territorial, Indian patent act is effective only in India. Each country has its own patent act and related rules. Therefore, one needs to file patent for respective country where he/she requires protection of his/her invention. The duration of patent is 20 years from the date of filing application. The criteria for patentable items are 1. Product or process should be novel; 2. It should have inventive step or must be non-obvious and 3. It should have industrial application. But most important criteria are that it should not fall in the non-patentable categories as per section 3 and 4 of act.
As inventor or innovator, we need to understand this section 3 & 4 as items or process under these sections are not patentable. The section 3(a) deals with those inventions which are against the well established natural law. The example is time machine. Section 3(b) focuses on public law & order or morality. The example is gambling machine or device for house breaking. In same section inventions which may cause serious health problem to health of human, animal, plant life or environment are also included. The examples are biological weapons or weapons of mass destruction. Genetically modified organisms which can be used for betterment of human, animal, plant life or environment are patentable. The section 3(c) says about discoveries that are not patentable. All existing living things like microorganisms or naturally occurring minerals are not patentable. But genetically modified organisms are patentable. As per section 3(d) mere mixture of known substances and finding new use of same substance is not patentable. But known substance or product mixture which leads to a new product or process which is going to have new use is patentable. This section mainly deals with pharmacy products because in pharmaceutical industry, with very small changes the product becomes new one. As per section 3(e) substances obtained by just adding or mixing with existing product does not make a new product. They are not patentable. For example, adding parcetamol in ibuprofen and making combiflam is not patentable. Section 3(f) says that mere re-arrangement of various devices are not patentable. For example, clock and radio in one cabinet, stethoscope with torch etc. Section 3(h) deals with methods of agriculture and horticulture. Various methods of agriculture and horticulture are not patentable but the instruments for agriculture are patentable.
Section 3(i) deals with process of treatment of medical, surgical, curative, diagnostic, prophylactic or prevention which are not patentable but instruments for same can be patentable. The surgical, diagnostic or therapeutic instruments are patentable. Orthopedic prosthesis, implant or artificial limbs are patentable. Drug for treatment is patentable but route of administration is not patentable. There are many exclusions in this category. One needs to understand properly and read section on reference web page[1].
This section 3(i) raises question ‘why so many exclusions in medical sciences?’ It is said that as per Hippocratic Oath or Medical code of conduct, the medical knowledge is for benefit of patients and community and not for personal gain of the physician. This is more seriously taken in Indian scenario. There are many things which are not patentable in India but are patentable in other countries.
Section 3(j) says that plants and animals as a whole or any parts like seeds, verities and processes are not patentable. But microorganisms, if not discovered from nature, are patentable. As per section 3(k), mathematical or business methods or computer programmes or algorithms are not patentable. Section 3(l) deals with areas like literary, dramatic, musical or artistic works which are also not patentable. Section 3(o) is for exclusion of topography of integration, section 3(p) is exclusion of traditional knowledge and section 4 is exclusion for atomic energy.
Thus, there are many exclusions in patent law in India. The innovator needs to understand these exclusions or need to take help of expert. But it does not mean that one should leave innovation. Keep in mind “necessity is the mother of invention” is a well known quote.
One more important question is that when should we file the patent? As medical inventor, we usually are interested in publication. So we are in a hurry for publication. But if invention is patentable, it is important that one should not publish anything before registering patent. Sometimes in some cases, there is a grace period of 12 months.
Next important question is how to find out the idea is already patented or not. In today's era, it is very easy to find out. One can do preliminary search on patent office database. Patent office journal is published every week. One can get information from journal also. Most important is the web based search which is now available. Visit the page http://ipindiaonline.gov.in/patentsearch/search/index.aspx and search existing patents.
Last but not the least issue in context to patent is regarding the outcome of the patent. Allbuisness.com[2] web reported that “97% of all patents never make any money”. This is very disappointing for the innovator. So innovators should ask three questions before registering for patent: 1. How do you make this instrument or innovation? 2. How much dose it costs? And 3. Are you ready to contact company for manufacturing? If answer of all three questions is “Yes”, you can be of 3% of above news.
With this background knowledge, any medical or health person can innovate and register his/her patent at respective territorial area.
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