6.1.3 The Patents Act, 1970 (pre–TRIPS Agreement)
The Patents Act, 1970, incorporated major provisions to reduce the social costs of foreign-owned patents. It prohibited patents on products useful as medicines and food, shortened the term of chemical process patents, and significantly expanded the availability of compulsory licensing. This spawned a powerful Indian pharmaceutical generic drugs industry.
In Bishwanath Prasad Radhey Shyam v. HM Industries,15 deciding an appeal in a case for infringement of a patent called “Means for Holding Utensils for Turning Purposes,” the Supreme Court said:
The object of the patent law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for the limited period, stimulates new inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the fixed period of the monopoly passes into public domain.
The salient features of the Act (as enacted) were:
- the reduction of the term of patent from 16 to 14 years;
- a maximum of seven years for the term of a patent for the processes for drugs and foods;
- no product patents available for food, drugs and medicines, including the products produced or obtained by chemical processes;
- provisions prescribing nonworking as a ground for the grant of compulsory licenses, licenses of right and the revocation of patents;
- the empowerment of government to use inventions for its own use;
- provisions for the use of inventions for government purposes, research or instruction to pupils;
- the endorsement of a “license of right” to patents related to drugs, foods and products of chemical reactions;
- the codification of certain inventions as non-patentable;
- the expansion of the grounds for opposition to the grant of a patent;
- exemption from anticipation in respect of certain categories of prior publication, prior communication and prior use;
- provisions for the secrecy of inventions relevant for defense purposes;
- the mandatory furnishing of information regarding foreign applications;
- the prevention of abuse of patent rights by voiding restrictive conditions in license agreements and contracts;
- a provision for appeal to the High Court from decisions of the Controller General of Patents, Designs and Trade Marks (“the Controller”); and
- the separation of industrial designs from the law of patents.