Intellectual Property Rights (IPR)
• Intellectual property: According to the World Intellectual Property Organization (WIPO),
Intellectual property refers to creations of the mind: inventions, literary and artistic
works, and symbols, names, images, and designs used in commerce. The term
intellectual property is used for the intangible asset that doesn’t exist in a physical
object but has a economic values.
• Intellectual property rights (IPR) refers to the legal ownership of intellectual property by
a person or business of an invention, discovery related to the particular product or
processes for the protection of the owner against unauthorized copying or imitations.
However, IPR is limited in terms of duration, scope and geographical extent.
• The importance of intellectual property was first recognized in the Paris Convention for
the Protection of Industrial Property (1883) and the Berne Convention for the
Protection of Literary and Artistic Works (1886). Both treaties are administered by the
World Intellectual Property Organization (WIPO).
• Patent: A Patent is the exclusive right granted by a government authority to
an inventor to manufacture, use, or sell an invention and prohibit others from
making, using, or selling an invention for a limited period of time.
• Designs: It is the art or practice of designing object for manufacturing
consisting aesthetic aspects and three-dimensional features like shape,
surface, patterns, lines, colors or two-dimensional features of objects.
• Trademarks: It is a symbol, word, or words registered legally or established by
use as to represent a company or product.
• Geographical indications: It is a name or sign used on products which
corresponds to a specific geographical location or origin having specific
qualities, reputation or characteristics (WIPO).
• Copyright: It is a legal rights provided to creators to perform, print, publish,
record literary, artistic, or musical materials for its uses and distributions
What is the need of IPR?
The progress and well-being of humanity rest on its capacity to create and invent new
works in the areas of technology and culture.
• Encourages innovation: The legal protection of new creations encourages the
commitment of additional resources for further innovation.
• Economic growth: The promotion and protection of intellectual property spurs economic
growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
• Safeguard the rights of creators: IPR is required to safeguard creators and other
producers of their intellectual commodity, goods and services by granting them certain
time-limited rights to control the use made of the manufactured goods.
• It promotes innovation and creativity and ensures ease of doing business.
• It facilitates the transfer of technology in the form of foreign direct investment, joint
ventures and licensing.
India and IPR
• India is a member of the World Trade Organization and committed to the
Agreement on Trade Related Aspects of Intellectual Property (TRIPs
• India is also a member of World Intellectual Property Organization (WIPO), a
body responsible for the promotion of the protection of intellectual property
rights throughout the world.
• In India, currently, the Patents Act 1970 and the corresponding rules govern the
grant of patents. Indian Parliament has made several comprehensive
amendments to the Patents Act 1970 in 1999, 2002, 2005 and 2018.
• CGPDT: Controller General of Patents, Designs & Trade Marks (CGPDT), (under
the Dept. of Industrial Policy and Promotion of Ministry of Commerce and
1856 Act for protection of inventions on the basis of British law of 1852
1859 Patent monopolies called exclusive privileges
1872 Patents and Designs Act
1883 Protection for Inventions Act 1888
1888 Inventions and Designs Act
1911-1947 Modern patent era by Patents and Designs Act. First time an authority call
Controller General of Patients appointed
1959 Justice Ayyangar’s report
1967 Patent Act Bill introduced in the Parliament
1970 The Patent Act passed by the Parliament
1972 The Patients Act -1970 came into force on April 20, 1972
1994 Amendments by ordinance to include Exclusive Marketing Rights (EMR’s)
1999 Amendments passed by the parliament. New patent amendment bill referred to
2003 Patient Act 1970 with second amendments came into force
2005 Patent Act 1970 (2005 Amendments) comes in to force from 1-1-2005.
History of Patents Acts in India
Indian Patent Act 1970
The Indian Patent Act 1970 grants the following rights to the patentee:
Right to exploit the patent
Right to license and assign the patent
Right to surrender the patent
Right to sue for the infringement of patent.
Prerequisites for a patent
• For patentability, there are only three prerequisites according to the
Section 2 (1) of the Indian Patent Act 1970, which are as follows:
1. An invention must be novel.
2. An invention should have an inventive step.
3. An invention should be capable of industrial application.
• According to the US patent law, Section 101 of the US Patent Act,
inventions are patentable when they fulfil the criteria of
Indian Patent Act Vs United States Patent Act
S.No. Indian Patent Act United States Patent Act
1. Indian patent laws are strict. US patent laws are liberal.
The Indian Patent Act quite elaborately describes the
non-patentable inventions under Sections 3 and 4.
US patent laws allows the grant of patent to
anyone who invents or discovers any new and
useful improvement in the existing invention.
Inventions related to atomic energy are not patentable
Inventions related to atomic energy are widely
accepted in US.
Inventions that are contrary to the public order or
morality are not granted patent (e.g. patent
or novel design of guns etc.)
Inventions that are patentable and novel in
design are allowed (e.g. patent or novel design
of guns etc.)
5. Indian patent laws grant patent on ‘first-to-file’ basis.
US patent laws grant patent on ‘first-to-invent’
6. Plants are not patentable in India Plants are patentable in the United States
Software is not patentable in India; they are
Software is patentable in the United States.
8. Patent agent should be Indian.
Patent agent from other countries can also
practice in United States.
Types of Patents awarded in India
S.No. Types of Patent Examples
1. Product Patent
b) Composition of matter
• Chemical compound, Chemical compounds, enzymes, cell lines,
plasmids, recombinant DNA, vector-host, microorganisms.
• Mixture of substances; pharmaceutical composition, food stuffs,
composition of fertilizers, lubricant composition
• Mouse trap, ball-point pen, x-ray tube, fermenter, coffee machine
2. Process Patent
a) Manufacturing process
b) Method of execution
• Method of preparing a substance; preparation of a hybrid plasmid,
gene cloning techniques, semi-synthetic penicillin or new azo dyes,
downstream process of extraction of plant or animal product
• Analytical or diagnostic methods of examination; freeze-drying
• Use of a substance or composition for a particular purpose;
utilization of herbicides for combating weeds.
3. Design Patent • Design and shape of articles like machine, bottles, vehicles etc.
Patent Procedure in India
Each application for a patent which is filed with the Indian
patent office needs to be accompanied by the forms
Form 1 – Application for grant of a patent
Form 2 – Provisional/Complete specification)
Form 3 – Statement and undertaking regarding foreign
application under section 8 (only required if a
corresponding patent application is filed in another
Form 5 – Declaration as to inventorship (only to be filed
along with the complete application)
Form 26 – Form for authorization of a patent agent (only
required if you are using a patent agent to help you file
Form 28 – To be submitted by startup or small entity (only
required if you are claiming startup or small entity status)
1. Textile invention: The inventions in textile technology can be related to areas like textile manufacturing, chemical processing,
fiber science and technology, textile machines and dyes.
2. Electrical Invention: Semiconductor products are not patentable but the process of making the semiconductor product is
patentable under the provisions of the Indian Patent Act 1970. The term of such patent is 14 years.
3. Software Patent: The Indian Patent Act 1970 does not recognize software programs. Computer software is generally
protected under the copyright law but software as essential part of the hardware, when connected to hardware can be
protected by patents, for example, UV spectrophotometer, automatic fermenters, etc.
4. Patents in Food Industry: Foods that are produced by combining traditional ingredients and using standard cooking or
preparation techniques are unlikely to meet the patent requirements. Some new food products are innovative chemical
compounds, such as artificial sweeteners and fat substitutes.
5. Pharmaceutical Patents: The Act of 1970 excluded pharmaceuticals and agrochemical products from the grants of patents.
TRIPs agreement has placed an obligation on India to grant product patents to drugs by 2005. On the grant of patent
protection, the firms that have patented their drugs may either export their drugs to India or may produce them in India
through license to firms.
6. Patent for microorganisms: These include traditional or conventional fermentation methods like preparation of curd, idii,
dosa or vada pastes, cheese etc. Bio-transformation processes for production of non-living matter like fermentation process
of product such as beer, wine, vinegar. Living entity of artificial origin, such as micro-organism, vaccines, transgenic animals
and plants etc. Biological materials such as DNA, plasmids, genes, vector, tissues, cells, replicons etc. Process relating to living
entities, such as isolation, purification, multiplication, etc. Process relating to biological material.
7. Plant Patent: Plants are not patentable in India.
Evolution of Patents in Microorganisms
1873 1st patent on microorganisms
1977 Budapest Treaty was signed
1980 Diamond V. Chakraborty case
2001 India joined Budapest Treaty
2002 Dimminaco A.G. case
2005 New Patening Regime
Patentable Ingredients in Biotechnology
1. RNA, DNA or Amino Acid Sequences: Random isolated sequences generally will not be
patentable if they have no utility, i.e., they have no known use at the date of filing
application. For example, ESTs sequenced without any function or utility is non-
2. DNA & RNA Vectors: Novel vectors created in lab used for cloning or expressing gene
sequences may be patentable.
3. Cell Lines: Artificially produced cell lines are patentable.
4. Gene: A gene to which genetic alterations have been made are patentable, a gene in
recombinant form or newly isolated gene in pure form is patentable if its utility or
function is known.
5. Protein: Patent protection for a protein may be granted if the protein is not previously
characterized or has been isolated from a natural resource in pure form. A novel or
known protein obtained through RDT may be patentable. For example, hormone
expressed from recombinant vector.
Patentability of Biotechnology Inventions In India
• Discovery of any living thing occurring in nature is not patentable subject matter
• Plant and animals in whole or any part thereof including seeds; varieties, species
and essentially biological processes for production or propagation of plants and
animals are not patentable in India.
• Microorganisms and microbiological processes are patentable subject matter.
• Genetically modified multicellular organisms including plants, animals, human
beings and their parts are excluded from patentability in India.
• Human beings and embryonic stem cells are not patentable.
• Methods of medical treatment are also prohibited from patentability in India.
Biodiversity and IPR
• Biodiversity is the treasure in a developing country like India. India is classified among the
12 megadiversity centers of the world.
• India is a member of the Biological Diversity Convention. The Central government has
established the National Biodiversity Authority for regulating, transferring and using
biodiversity resources at the national level. The Biodiversity Act, 2002 has applicability
• Functions of National Biodiversity Authority (NBA)
The authority grants approval to applications for patents relating to biological research in foreign
The authority imposes terms and conditions for paying royalty, secure equitable sharing of benefits
that arise out of the use of accessed biological resource and their by-products.
The authority gives advice to the Central Government on matters related to conservation and
sustainable use of biodiversity. It also advices the State government to choose the areas that can be
notified as heritage sites.
The authority grants permission to the interested people to acquire biological resource in India,
permits them to acquire knowledge related to the biological research and transfer of results related
to the biological resource.
• Basmati case study: RiceTec Inc. is using a stolen name Basmati for rice which is derived
from Indian rice but not grown in India, and hence not the same quality.
• During 2000 and 2001, bioinformatics patents were given for computer-based methods
of determining the actions of drug candidates on cellar targets, methods for modelling
molecular interactions for rational drug design, use of 3D protein structures in rational
drug design and bioinformatics database structures.
• Types of intellectual property protection in bioinformatics involve the following.
Patents: Patents act an important incentive for technology development, protection and
innovation. Out of the various types of patents, utility patent is very much associated with
bioinformatics inventions, and can be obtained for a new, useful and non-obvious process,
machine, manufacture or composition of matter or new and required improvement on any of the
above process or product.
Trade Secret: Trade secrets can be used in the field of bioinformatics for securing the secrets like
software code, manuals, databases, factual laboratory data, formulas, processes and algorithms.
Copyrights: Copyrights can be used to protect bioinformatics-related material such as software,
code, books, scientific articles, web pages, manuals, computer algorithms, graphic networks,
multimedia works, manuals, etc.
Trademarks: Trademarks in bioinformatics are used to protect the trade names, product names,
domain names, service marks or slogans for bioinformatics companies.
• In India, 184 patents are held by the Council of Scientific and Industrial Research, 56 by Ranbaxy,
and 19 by Dr. Reddy’s Laboratories.
• Patents on genes have only been granted on isolated gene sequences with known functions. The
gene sequence can be utilized in four different ways.
Diagnostic Testing: A DNA sequence can be used as a probe that binds to DNA from an infectious agent
and carries a detectable fluorescent molecule, which helps in testing.
A Vaccine: Apart from live attenuated bacterium, a vaccine might also consist of a DNA sequence
unique to a disease-causing virus or bacterium.
Gene Therapy: In gene therapy, a normal gene replaces a malfunctioning gene. Thus, a normal version
of gene is required as a treatment measure.
Genetic Counselling: It provides information about an individual’s likelihood to develop a specific
condition or disease.
• Between 1981 and 1995, 1175 patents were granted worldwide related to human DNA
• The gene sequence and DNA sequence with unidentified function are non-patentable.
• There are certain issues like the issue of gene patenting, which are at risk as their patentability
affects patients, industry, researchers and others.
Controversies in Gene Patent
S.No. Favouring Gene Patent Against Gene Patent
1 Patents on gene lead to the development of life-saving
DNA sequences/genes are blueprints of life and play a
special role in carrying the information to construct a
2 Gene patenting will force the disclosure of secret information,
e.g. Genentech patent on human insulin gene enabled
pharmaceutical company Eli Lilly to develop insulin for diabetics
Gene is very closely related with species identity, so no
parts of it should be controlled by corporate interest.
3 Isolation of gene make it ‘artificial’ as no isolated gene
sequence occurs in nature. Thus it should be patentable as not
In case of humans DNA is unique and therefor possess
intrinsic value of sacred kind.
4 A patented gene differs from its intracellular counterpart in that
it is no longer a part of a chromosome and patents claims only
the protein coding part of a gene, not the entire gene.
DNA bears the image of God and is a product of nature,
not human ingenuity.
5 DNA sequence exists with a known function or use, but genetic
alteration makes it different from their form inside a cell and
should be patentable.
Plants, animals and microorganisms comprise life on
earth and a part of nature. These species, or their
molecules or parts, should not be converted to corporate
property through patent monopolies.
Novelty means that the invention should be new or innovative, i.e. it should not be available to the public earlier.
An invention must be an inventor’s own discovery. It can be either an improvement on existing articles or methods or even a small functional improvement.
A generic drug is the one which can be called as the copy of the original drug after the original drug expires from the term of patent.
The treaty does not defi ne the meaning of microorganisms but the range of materials able to be deposited under the Budapest treaty includes the following:❏ Cells: bacteria, fungi, eukaryotic cell lines, plant spores.❏ Genetic vectors (plasmids or bacteriophage vectors or viruses) containing a gene or DNA fragment.❏ Purified nucleic acids.❏ Naked DNA, RNA or plasmids.
The story of gene patenting started with the case of Diamond vs Chakrabarty on 16 June 1980 in the United States for the genetically altered oil-eating bacteria (Pseudomonas sp.), which was rejected earlier until the decision of US Supreme Court that held that genetic alteration of a bacterium DNA makes the natural product artificial and so is patentable.
Controller General of Patents, Designs and Trademarks