Title: | Sections 5 and 24A, 24B and 24D of the Patent Act No. 39 of 1970 as last amended by Act No. 15 of 2005 |
Field of IP: | Patents |
Type of flexibility: | Transition periods |
Summary table: |
[5. Inventions where only methods or processes of manufacture patentable
(1) In the case of inventions
a) claiming substances intended for use, or capable of being used, as food or as medicine or drug, or
b) relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi-conductors and inter-metallic compounds);
no patent shall be granted in respect of claims for the substances them selves, but claims for the methods or processes of manufacture shall be patentable.
[(2) Notwithstanding anything contained in sub-section (1), a claim for patent of an invention for a substance itself intended for use, or capable of being used, as medicine or drug, except the medicine or drug specified under sub-clause (v) of clause (1) of sub-section (1) of section 2, may be made and shall be dealt, without prejudice to the other provisions of this Act, in the manner provided in Chapter IVA.]
Explanation: for the purposes of this section "chemical processes" includes biochemical, biotechnological and microbiological processes.] (Section omitted by Patent amendment Act of 2005)
[24A. Application for grant of exclusive rights - (1) Notwithstanding anything contained in sub-section (1) of section 12, the Controller shall not, under that sub-section, refer an application in respect of a claim for a patent covered under sub-section (2) of section 5 to an Examiner for making a report till the 31st day of December, 2004 and shall, where an application for grant of exclusive right to sell or distribute the article or substance in India has been made in the prescribed form and manner and on payment of prescribed fee, refer the application for patent, to an Examiner for making a report to him as to whether the invention is not an invention within the meaning of this Act in terms of section 3 or the invention is an invention for which no patent can be granted in terms of section 4.
(2) Where the Controller, on receipt of a report under sub-section (1) and after such other investigation as he may deed necessary, is satisfied that the invention is not an invention within the meaning of this Act in terms of section 3 or the invention is an invention for which no patent can be granted in terms of section 4, he shall reject the application for exclusive right to sell or distribute the article or substance.
(3) In a case where an application for exclusive right to sell or distribute an article or a substance is not rejected by the Controller on receipt of a report under sub-section (1) and after such other investigation, if any, made by him, he may proceed to grant exclusive right to sell or distribute the article or substance in the manner provided in section 24B.
Explanation: It is hereby clarified that for the purpose of this section, exclusive right to sell or distribute any article or substance under this section shall not include an article or substance based on the system on Indian Medicine as defined in clause (e) of sub-section (1) of section 2 of he Indian Medicine Central Council Act, 1970 (48 of 1970), and where such article or substance is already in the public domain. ] (Omitted by Act No. 15 of 2005)
[24(B). Grant of exclusive of rights - (1) Where a claim for patent covered under sub-section 2 of section 5 has been made and the applicant has -
a) where an invention has been made whether in India or a country other than India and before filing search a claim, filed an application for the same invention claiming identical article or substance in a convention country on or after the 1st day of January, 1995 and the patent and the approval to sell or distribute the article or substance on the basis of appropriate tests conducted on or after the 1st day of January, 1995 in that country has been granted or after the date of making claim for patent covered under sub-section 2 of section 5; or
b) where an invention has been made in India and before filing search a claim, made a claim for patent on or after the 1st day of January, 1995 for method or a process of manufacture for that invention relating to identical article or substance and has been granted in India the patent therefore on or after the making the claim for patent covered under sub-section 2 of section 5, and has been received the approval to sell or distribute the article or substance from the authority specify in this behalf by the Central Government, then, we shall have the exclusive right by himself, his agents or licencee to sell or distribute in India the article or the substance on or from the date of approval granted by the Controller in this behalf till a period of five years or till the date of grant of patent or the date of rejection of application for the grant of patent, whichever is earlier.
(2) Where, the specifications of an invention relatable to an article or a substance covered under sub-section (2), of Section 5 have been recorded in a document or the invention has been tried or used, or, the article or the substance has been sold, by a person, before a claim for a patent of that invention is made in India or in a convention country, then, the sale or distribution of the article or substance by such person, after the claim referred to above is made shall not be deemed to be an infringement of exclusive right to sell or distribute under sub-section (1).
Provided that nothing in this sub-section shall apply in a case where a person makes or uses an article or a substance with a view to sell or distribute the same the details of invention relatable thereto were given by a person who was holding an exclusive right to sell or distribute the article or substance. ] (Omitted by Act No. 15 of 2005)
[24D. Special provision for selling or distribution
Without prejudice to the provisions of any other law for the time being in force, where, at any time after an exclusive right to sell or distribute any article or substance has been granted under sub-section 91) of Section 24B, the Central Government is satisfied that it is necessary or expedient in public interest o sell or distribute the article or substance by a person other than a person to whom exclusive right has been granted under sub-section (1) of Section 24B; it may, by itself or through any person authorized in writing by it in this behalf, sell or distribute the article or substance.
The Central Government may, by notification in the Official Gazette and at any time after an exclusive right to sell or distribute an article or a substance has been granted, direct, in the public interest and for reasons to be stated, that the said article or substance shall be sold at a price determined by an authority specified by it in this behalf. ] (Omitted by Act No. 15 of 2005)