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IN018

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The Patents (Amendment) Act, 2005 (Act No. 15 of 2005)

 Patents (Amendment) Act, 2005, No. 15 of 2005

Page 2

MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 5th April, 20051Chaitra 15,1927 (Saka)

The following Act of Parliament received the assent of the President on 4th April, 2005, and is hereby published for general information:-

TIIE PATENTS (AMENDMENT) ACT, 2005

No. 15 OF 2005

An Act further to amend the Patents Act, 1970.

[4thAprii, 2005;]

BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

1. (1) This Act may be called the Patents (Amendment) Act, 2005. Short title and

(2) Sub-clause (iz) of clause (a), and clause (b), of section 37, sections 41,42,47,59 to' commence- 63 (both inclusive) and 74 shall come into force on such date as the Central Government may, ment. by notification in the Official Gazette, appoint; and the remaining provisions ofthis Act shall be deemed to have come into force on the 1st day of January, 2005.

390fl970 2. In section 2 ofthe Patents Act, 1970 (hereinafter referred to as the principal Act), in Amendment sub-section (1),- of section 2.

(a) after clause (ab), the following clause shall be inserted, namely:-

'(aba) "Budapest Treaty" means the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent

Procedure done at Budapest on 28th day ofApril, 1977, as amended and modified from time to time;';

(b) in clause (d), for the words, brackets and figures "notified as such under sub section (1) ofsection 133", the worps and figures "referred to as a convention country in section 133" shall be substituted;

(c) clause (g) shall be omitted;

(d) in clause (h),-

(z) in sub-clause (iii), after the words and figures "the Companies Act, 1 of 1956 1956", the word "; or" shall be inserted;

, (ii) after sub-clause (iii), the following sub-clause shall be inserted, namely:- .

"(iv) by an institution wholly or substantially financed by the Government; ";

(iii) the words "and includes the Council of Scientific and Industrial Research and any other institution which is financed wholly or for the major part by the said Council;" shall be omitted;

(e) for clause (i), the following Clause shall be substituted, namely:-

'(i) "High Court", in relation to a State or Union territory, means the High Court having territorial jurisdiction in that State or Union territory, as the case maybe;';

(f) for clause 6a), the following clause shall be substituted, namely:-

(ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the an;';

(g;) for clauses (I) and (m), the folloVling clauses shall be substituted, namely:-

'(l) "new invention" means any invention or technology which has not been anticipated by publication in any document or used in the cOlmtry or elsewhere in the world before the date of filing ofpatent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part ofthe state ofthe art;

'(La) "Opposition Board" means an Opposition Board constituted under sub-section (3) of section 25;

(m) "patent" means a patent for any invention granted under this Act';

(h) after clause (t), the folloWing clause shall be inserted, namely:-

(ta) "pharmaceutical substance" means any new entity involving one or more inventive steps;'.

Amendment 3. In section 3 ofthe principal Act, for clause (d), the folloVling shall be substitued, of section 3 namely:-

"(d) the mere discovery of anew form of a !mown substance which does not result in the enhancement of the !mown efficacy ofthat substance or the mere discovery of any new property or new use for a !mown substance or ofthe mere use of a !mown process, machine or apparatus unless such !mown process results in a new pro~uct or employs at least one new reactant. !

Explanation.-For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of !mown substance shall be. considered to be the same substance, unless they differ significantly in properties with regard to efficacy;".

4. Section 5 ofthe principal Act shall be omitted.

5. In section 7 of the principciI Act,- (a) after sub-section (JA) the following sub-section shall be inserted, namely:-

"(iB) The filing date of an application referred to in sub-section (iA) and its complete specification processed by the patent office as designated office or elected office shall be the international filing date accorded under the Patent Cooperation Treaty.";

(b) in sub-section (3), for the word "owner", the word "person" shall be substituted;

(c) for sub-section (4), the following sub-section shall be substituted, namely:- .

"(4) Every such application (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) shall be accompanied by a provisional or a complete specification." .

6. In section 8 ofthe principal Act,-

(a) in sub-section (1),- (ij for the words "within such period as the Controller may, for good and

sufficient reasons, allow", the words "within the prescribed period as the Controller may allow" shall be substituted;

(iij in clause (b), for the words "up to the date of the acceptance ofhis complete specification filed in India", the words "up to the date of grant ofpatent in India" shall be substituted;

(b) for sub-section (2), the following sub-section shall be substituted, namely:-

"(2) At &'1Y time after an application for patent is filed in India and till the grant of a patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a countrj outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.".

Page 3

Omission of section 5 Amendment of section 7

Amendment of section 8

Page 4

Amendment of section 10

Amendment of section 11

Amendment of section llA

7. In section 9 ofthe principal Act,-

(a) for sub-section (1), the following sub-section shall be substituted, namely:- "(1) \\7bere an application for a patent (not being a convention application

or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a provisional specification, a complete specification shall be fiJed within twelve months from the date of filing of the application, and if the complete specification is not so filed, the application shall be deemed to be abandoned. "; (b) in sub-section (2), the following proviso shall be inserted at the end,

namely:-

"Provided that the period of time specified under sub-section (1) shall be. reckoned from the date offiling of the earliest provisional specification.";

(c) for sub-section (3), the following sub-section shall be substituted, namely.-

"(3) Where an application for a patent (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a specification purporting to be a complete specification, the Controller may, if the applicant so requests at any tirrie within twelve months from the date of filing of the application, direct that such specification shall be treated, for the purposes of this Act, as a provisional specification and proceed with the application accordingly. ";

(d) in sub-section (4), for the words "the acceptance ofthe complete specification", . the words "grant ofpatent" shall be substituted.

8. In section 10 ofthe principal Act,-

(a) in sub-section (3), for the words "before the acceptance ofthe application", the words "before the application is found in order for grant of a patent" shall be . substituted;

(b) in sub-section (4), in the proviso,-

(0 in clause (ii), for the words "the material to an authorised depository institution as may be notified by the Central Government in the Official Gazette", the. words "the material to an intemational depository authority under the Budapest Treaty" shall be substituted;

(ii) for sub-clause (A), the following sub-clause shall be substituted, namely:-

"(A) the deposit ofthe material shall be made not later than the date of filing the patent application in India and a reference thereof shall be made in the specification within the prescribed period;";

(c) for sub-section (4A), the following sub-section shall be substituted, namely:-

"(4A) In case of an international application designating India, the title, description, drawings, abstract and claims filed with the application shall be taken as the complete specification for the purposes ofthis Act.".

9. In section 11 ofthe principal Act,-

(a) after sub-section (3), the following sub-section shall be inserted, namely:-

"(3A) Where a complete specification based on a previously filed application in India has been filed witl::rin twelve months from the date of that application and the claim is fairly based on the matter disclosed in the previously filed application, the priority date ofthat claim shall be the date ofthe previously filed application in which the matter was first disclosed.";

(b) in sub-section (6], a:fterthe brackets and figure "(3),", the brackets, figure and letter "(3A), " shall be inserted.

10. In section lIA ofthe principal Act,-

(a) for sub-sections (1) to (3), the following sub-sections shall be substituted, namely:-

. "(I) Save as otherwise provided, no application for patent shall ordinarily be open to the public for such period as may be prescribed.

Amendment of section 9

(2) The applicant may, in the prescribed manner, request the Controner to publish his application at any time before the expiry of the period prescribed under sub-section (1) and subject to the provisions of sub-section (3), the Controller shall publish such application as soon as possible.

(3) Every application for a patent shall, on the expiry ofthe penod specified under sub-section (1), be published, except in cases where the application-

(a) in which secrecy direction is imposed under section 35; or

(b) has been abandoned under sub-section (1) of section 9; or

(c) has been withdrawn three months prior to the period specified under sub-section (1).";

(b) in sub-section (4), for the words "ofeighteen months", the words, brackets and figure "prescribed under sub-section (1)" shall be substituted;

(c) after sub-section (6), the following sub-section shall be inserted, namely:-

"(7) On and from the date ofpublication ofthe application for patent and until the date of grant of a patent in respect of such application, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date ofpublication of the application:

Provided that the applicant shall not be entitled to institute any proceedings . for infringement until the patent has been granted:

Provided further that the rights of a patentee in respect of applications made under sub-section (2) of section 5 before the 1st day ofJanuary, 2005 shall accrue from the date of grant ofthe patent:

Provided also that after a patent is granted in respect of applications made under sub-section (2) of section 5, the patent-holder shall' only be entitled to receive reasonable royalty from such enterprises which have made significant investment and were producing and marketing the concerned product prior to the 1st day of January, 2005 and which continue to manufacture the product covered by the patent on the date of grant of the. patent and no infringement pmceedings shan be instituted against such enterprises. ".

11. In section llB of the principal Act,- (a) for sub-section (1), the following sub-section shall be substituted, name1y:-

"(1) No application for a patent shall be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period.";

(b) sub-section (2) shall be omitted;

(c) for sub-section (3), the following sub:-section shall be substituted, name1y:-

"(3) In case of an application in respect of a claim for a patent filed under sub-section (2) of section 5 before the 1st day of January, 2005 a request for its examination shall be made in the prescnoed manner and within the prescnoed period by the applicant or any other interested person.";

(d) in sub-section (4),-

(i) the words, brackets and figl,lTe "or sub-section (2)" shall be omitted;

(ii) for the proviso, the following proviso shall be substituted, namely:-

"Provided that-

(i) the applicant may, at any time after filing .the application but before the grant of a patent, withdraw the application by making a

request in the prescnbed manner; and (ii) in a case where secrecy direction has been issued under

section 35, the request for examination may be made within the prescribed period from the date ofrevocation of the secrecy

direction.".

Page 5

Amendment of section lIB

12. In section 12 ofthe principal Act,- Amendment

(a) in sub-section (1), for the words, brackets, figures and letter "under sub of section section (]) or sub-section (2) or sub-section (3) of section lIB, the application and 12._ specification and other documents shall be referred to by the Controner", the words, . brackets, figures and letter "under sub-section (1) or sub-section (3) ofsection IlB, the application and specification JDd other ciccuments related thereto shan be referred at the earliest by the Cantrolle," shell be substituted:

Page 6

Substitution ofnew sections for sections 14 . and 15. Consideration of the report of examiner by Controller.

Power of Controller to refuse or require amended applications, etc., in certain cases.

Amendment of section 16.

Amendment of section 17. Amendment of section 18.

Amendment of section 19.

Substitution ofnew section for section 21.

Time for putting application in order for grant.

(b) in sub-section (2), for the words"a period of eighteen months from the date of such reference", the words "such period as may be prescribed" shall be substituted.

13. In section 13 of the principal Act, in sub-section (3), for the words "it has been accepted", the words "the grant of a patent" shall be substituted.

14. For sections 14 and 15 of the principal Act, the following sections shall be substituted, namely:-

"14. Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment ofthe apphcation, the specification or other documents to ensure compliance with the provisions ofthis Act or ofthe rules made thereunder, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed period, give him an opportunity ofbeing heard.

15. Where the Controller is satisfied that the application or anyspecmcation or any other document filed in pursuance thereof does not comply with the requirements of this Act or of any rules made thereunder, the Controller may refuse the application or may require the application, specification or the other documents, as the case may be, to be amended to his satisfaction before he proceeds with the application and refuse the application on failure to do so.".

15. In section 16 ofthe principal Act,-

(a) in sub-section (1), for the words "before the acceptance of the complete specification", the words "before the grant of the patent" shall be substituted;

(b) for the Explanation, the following Explanation shall be substituted, namely:-

"Explanation-For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescnbed period".

16. In section 17 ofthe principal Act, in sub-section (1), for the words "before acceptance ofthe complete specification", ·the words ''before the grant ofthe patent" shall be substituted.

17. In section 18 ofthe principal Act,-

(a) in sub-section (1), for the words "to accept the complete specification", !he words "the application'.' shall be substituted;

(b) sub-section (4) shall be omitted.

18. In section 19 ofthe principal Act, in sub-section (1), for the words and figures "by the foregoing provisions ofthis Act or ofproceedings under section 25", the words "under this Act" shall be substituted.

19. For section 21 of the principal Act, the foIIowing section shall be substituted, name1y:-

"21. (1) An application for a patent shall be deemed to have been abandoned unless, within such period as may be prescribed, the applicant has complied with all the requirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application from the date on which the first statement of objections to the application or complete specification or other documents related thereto is forwarded to the applicant by the Controller.

Explanarion.-Vi7here t~e application for a patent or any specification or, in the case of a convention application or an application filed under the Patent Cooperation

Amendment of section 13

Treaty designating India any document filed as part 9fthe application has been returned to the applicant by the Controller in the course of the proceedings, the applicant shall not be deemed to have complied with such requirements unless and until he has re- filed it or the applicant proves to the satisfaction of the Controller that for the reasons beyond his control such document could not be re-fiied.

(2) Ifat the expiration of the period as prescribed under sub-section (1),-

(a) an appeal to the High Court is pending in respect ofthe application for the patent for the main invention; or

(b)·in the case of an application for a·patent of addition, an appeal to the High Court is pending in respect of either that application or the application for the main invention, the time within which the requirements ofthe Controller shall be complied with shan, on an application made by the applicant before the expiration ofthe period as prescnbed under sub-section (1), be extended until such date as the High Court may determine.

(3) If the time within which the appeal mentioned in sub-section (2) may be instituted has not expired, the Controller may extend the period as prescribed under sub-section (1), to such further period as he may determine:

Provided that if an appeal has been filed during the said further period, and the High Court has granted any extension of time for complying with the requirements of the Controller, then the requirements may be complied with within the time granted by the Court. ".

20. Sections 22 to 24 ofthe principal Act shall be omitted.

21. Chapter IVA ofthe principal Act shall be omitted.

22. In Chapter V ofthe principal Act, for the Chapter heading "oPPosmONTO GRANT OF PATENT", the Chapter heading "oPPosmON PROCEEDINGS TO GRANT OF PATENTS" shall be substituted.

23. For sections 25 and 26 ofthe principal Act, the following sections shall be substituted, namely:-

"25. (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant ofpatent on the groun~

(a) that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereoffrom him or from a person under or through whom he claims;

(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date ofthe claim-

(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1 st day ofJanuary, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in sub-clause (ii) shall not be available where such public,:-tion does not constitute an anticipation ofthe invention by virtue of sub-section (2) or sub-section (3) of section 29;

(c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date ofthe applicant's claim and filed in pursuance of an application for a patent in India., being a claim ofwhich the priority date is earlier than that of the applicant's claim:

Page 7

Omission of sections 22 to 24 Omission of Chapter IVA Substitution ofnew heading for heading of Chapter V Substitution ofnew sections for sections 25 and 26 Opposition to the patent

Page 8

(d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date ofthat claim.

Explanation -For the purposes of this clause, an invention relating to a process for which a patent is claimed shall.be deemed to have been publicly known or publicly used in India before the priority date ofthe claim ifa product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only;

(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date ofthe applicant's claim;

(j) that the subject of any claim of the complete specification is not an invention within the meaning ofthis Act, or is not patentable un:der this Act;

(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be perfonJ?-ed;

(h) that the applicant has failed to disclose to the Controller the information required by section 8 or has furnished the information which in any material particular was false to his knowledge;

(i) that in the case of convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title; .

(j) that the complete specification does not disclose or wrongly mentions the source or geographical origin ofbiological material used for the invention;

(k) that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere,

but on no other ground and the Controller shall, ifrequested by such person for being heard, hear him and dispose of such representation in such manner and within such period as may be prescribed.

(2) At any time after the grant ofpatent but before the expiry of a period of one year from the date ofpublication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely:-

(a) that the patentee or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims;

(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date ofthe claim-

(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day ofJanuary, 1912; or

(ii) in India or elsewhere, in any other document: Provided that the ground specified in sub-clause (ii) shall not be

available where such publication does not constitute an ·anticipation of the invention by virtue ofsub-section (2) or sub-section (3) of section 29; (c) that the invention so far as claimed in any claim of the complete

specification is claimed in a claim of a complete specification published on or after the priority date of the claim ofthe patentee and filed in pursuance ofan application for a patent in India, being a claiin of~hich the priority date is earlier than that of the claim of the patentee;

(d) that the invention so far as claimed in any claim of the complete specification was publicly lmown or publicly used in India before the priority date ofthat claim.

.Explanation.-For the purposes of this clause, an invention relating to a process for which a patent is granted shall be deemed to have been publicly

known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only;

(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not iJ:!volve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date ofthe claim; .

(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act;

(g) that the complete speciiication does not sufficiently and clearly describe the invention or the method by which it is to be perfonned;

(h) that the patentee has failed to disclose to the Controller the infonnation required by section 8 or has furnished the infonnation which in any material particular was false to his knowledge;

(0 that in the case of a patent granted on convention application, the application for patent was not made within twelve months from the date of th~ first application for protection for the invention made in a'Convention country or in India by the patentee or a person from v/hom he derives title;

(j) that the complete specification does not disclose or wrongly mentions the source and geographical origin ofbiological material used for the invention;

(k) that the invention so far as claimed in any claim of the complete speciiication was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous commuriity in India or elsewhere,

but on no other ground. (3) (a) Where any such notice of opposition is duly given under sub-section (2),

the Controller shall notify the patentee. (b) On receipt of such notice of opposition, the Controller shall, by order in

writing, constitute aBoard to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller.

(c) Every Opposition: Board constituted under clause (b) shall conduct the examination in accordance with such procedure as may be prescribed.

(4) On receipt ofthe recommendation ofthe Opposition Board and after giving the patentee and the opponent an opportunity of being heard, the Controller shall order either to maintain or to amend or to revoke the patent.

(5) While passing an order under sub-section (4) in respect of the ground mentioned in clause (d) or clause (e) of sub-section (2), the Controller shall not take into account any personal document or secret trial or secret use.

(6) In case the Controller issues an order under sub-section (4) that the patent shall be maintained subject to amendment ofthe specification or any other document, the patent shall stand amended accordingly.

26. (1) \Vhere in any opposition proceeding under this Act the Controller finds that-

(a) the invention, so far as claimed in any claim ofthe complete specification, was obtained from the opponent in the manner set out in clause (a) of sub section (2) of section 25 and revokes the patent on that ground, he may, on request by such opponent made in the prescribed manner, direct that the patent shall stand amended in the name of the opponent;

(b) apart of an invention described in the complete specification was so obtained from the opponent, he may pass an order requiring that the specification be amended by the exclusion ofthat part ofthe invention. (2) Where an opponent has, before the date of the order of the Controller requiring

the amendment of a complete specification referred to in clause fb; of sub-section (J j,

Page 9

In cases of "obtaining II Controller may treat the patent as the patent of opponent.

Page 10

Omission of section 27 Amendment of section 28

Amendment of section 31.

Amendment

filed an application for a patent for an invention which included the whole or a part of the invention held to have been obtained from him and such application is pending, the Controller may treat such application and specification in so far as they relate to the invention held to have been obtained from him, as having been filed, for the purposes of this Act relating to the priority dates of claims ofthe complete specification, on the date on which the corresponding document was or was deemed to have been filed by the patentee in the earlier application but for all other purposes the application of the opponent shall be proceeded with as an application for a patent under this Act.".

24. Section 27 of the principal Act shall be omitted.

25. In section 28 ofthe principal Act,- . (a) for sub-section (4), the following sub-section shall be substituted, namely:-

"(4) A request or claim under the foregoing provisions of this section shall be made before the grant ofpatent."; ""

(b) sub-section (5) shall be omitted; (c) 1.'1 sub-section (6), for the words, brackets and :figure "Subject to the provisions .

of sub-section (5), where", the word "Where" shall be substituted. 26. In section 31 of the principal Act, for the words "not later than six months", the

words "not later than twelve months" shall be substituted. ofsection 34. 27. In section 34 ofthe principal Act, the words "to accept complete specification for a Amendment patent or" shall be omitted. ofsection 35. 28. In section 35 ofthe principal Act, in sub-section (3), for the words "acceptance of Amendment complete specification", the words "grant ofpatent" shall be substituted. ofsection 36. 29. In section 36 ofthe principal Act, in sub-section (1), for the words "twelve months", Am elm t f the words "six months" shall be substituted.en en 0 section 37. 30. In section 37 ofthe principal Act,-

Substitution of new section for section 39. Residents not to apply for patents outside India without prior permission.

(a) in sub-section (1),- (i) in clause (a), for the words "to accept", the words "to grant" shall be

substituted;

(iO for the proviso, the following proviso shall be substituted, namely:- "Providedthat the application may, subject to the directions, proceed up to the stage of grant of the patent, but the application" and the specification found to be in order for grant of the patent shall not be published, and no patent shall be granted in pursuance ofthat application.";

(b) in sub-section (2), for the words "is accepted", the words "is found to be in order for grant of the patent" shall be substituted. 31. For section 39 ofthe principal Act, the following section shall be substituted,

namely:-

"39. (1) No person resident in India shall, except under the authority ofa written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant ofa patent for an invention unless-

(a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and

(b) either no direction has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions havebeen revoked.

(2) The Controller shall dispose of every such application within such period as may be prescribed:

Pwvided that if the invention is relevant for defence purpose or atomic energy, t.'1e Conrroller shall not grant permit without the prior consent ofthe Cenrral Government.

(3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.".

32. In Chaptervm ofthe principal Act, for the Chapter heading "GRANT AND SEALING OF PATENTSANDRIGHIS CONFERRED THEREBY", the Chapterheading "GRANT OF PATENTS AND RIGHTS CONFERRED THEREBY" shall be substituted

33. For section 43 of the principal Act, the following section shall be substituted, narnely:-

"43. (1) Where an application for a patent has been found to be in order for grant ofthe patent and either-

(a) the application has not been refused by the Controller by-virtue ofany power vested in him by this Act; or

(b) the application has not been found to be in contravention of any ofthe provisions ofthis Act,

the patent shall be granted as expeditiously as possible to the applicant or, in the case of a joint application, to the applicants jointly, with the seal ofthe patent office and the date on which the patent is granted shall be entered in the register.

(2) On the grant ofpatent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.".

34. In section 44 ofthe principal Act, for the word "sealed", at both the places where it occurs, the word "granted" shall be substituted.

35. In section 45 of the principal Act, in sub-section (3), for the words "the date of advertisement of the acceptance of the complete specification", the words "the date of publication of the application" shall be substituted.

36. In section 48 ofthe principal Act, the proviso shall be omitted.

37. In section 52 ofthe principal Act,-

(a) in sub-section (1),-

(i) for the opening words "Where a patent has been revoked", the words and figures "Where the patent has been revoked under section 64" shall be substituted;

(ii) for the word "court", wherever it occurs, the words "Appellate Board or court" shall be substituted;

(b) in sub-section (2), for the word "court", occurring at both the places, the words "Appellate Board or court" shall be substituted.

38. In section 53 of the principal Act,-

(a) after sub-section (1), the following Explanation shall be inserted, narnely:-

"Explanation.-For the purposes of this sub-section, the term ofpatent in. case of International applications filed under the Patent Cooperation Treaty designating India, shall be twenty years from the mtemational filing date accorded under the Patent Cooperation Treaty.";

(b) in sub-section (2), for the words "or within that period as extended under this section", the words "or within such extended period as may be prescribed" shall be substituted;

(c) sub-section (3) shall be omitted.

39. In section 54 ofthe principal Act,-

(a) in sub-section (3), for the words "complete specification", occurring at both the places, the word "application" shall be substituted;

Page 11

Substitution ofheading of ChapterVIll.

Substitution of new section for section 43. Grant of patents.

Amendment of section 44.

Amendment of section 45.

Amendment of section 48 Amendment of section 52.

Amendment of section 53.

Amendment of section 54.

Page 12

Amendment of section 57.

Substitution ofnew section for section 58 Amendment of specification before Appellate Board or High Court.

(b) for sub-section (4), the following sub-section shall be substituted, namely:-"

"(4) A patent of addition shall not be granted before grant ofthe patent for the main invention.".

40. In section 57 ofthe principal Act,-

(a) for sub-section (3), the following sub-section shall be substituted, namely:-

"(3) Any application for leave to amend an application for a patent or a complete specification or a document related thereto under this section made after the grant of patent and the nature of the proposed amendment may be published.";

(b) in sub-section (4),-

(i) for the word "advertised", the word "published" shall be substituted;

(ii) for the word "advertisement", the word "publication" shall be substituted;

(c) for sub-section (6), the following sub-section shall be substituted, namely:-

"(6) The provisions of this section shall be without prejudice to the right of an applicant for a patent to amend his specification or any other document related thereto to comply with the directions of the Controller issued before the grant ofa patent.".

41. For section 58 of the principal Act, the following section shall be substituted, namely:-

"58. (1) In any proceeding before the Appellate Board or the High Court for the revocation of a patent, the Appellate Board or the High Cotnt, as the case may be, may, subject to the provisions contained in section 59, allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or otherwise, as the Appellate Board or the High Court may think fit, and ifin any proceedings for revocation the Appellate Board or the High Court decides that the patent is invalid, it may allow the specification to be amended under this section instead ofi"evoking the patent.

(2) Where an application for an order under this section is made to the Appellate Board or the High Court, the applicant shall give notice of the application to the Controller, and the Controller shall be entitled to appear and be heard, and shall appear if so directed by the Appellate Board or the High Court.

(3) Copies of all orders of the Appellate Board or the High Court allowing the patentee to amend the specification shall be transmitted by the Appellate Board or the High Court to the Controller who shall, on receipt thereof, cause an entry thereof and reference thereto to be made in the register. ".

Amendment 42. In section 59 of the principal Act, for sub-section (2), the following sub-section of section 59 shall be substituted, namely:-

"(2) Where after the date of grant ofpatent any amendment ofthe specification or any other documents related thereto is allowed by the Controller or by the Appellate Board or the High Court, as the case may be,-

(a) the amendment shall for all purposes be deemed to form part ofthe specification along with other documents related thereto;

(b) the fact that the specification or any other docllillems related thereto has been amended shall De published as expeditiously as possible; and

330fl962

(e) the right ofthe applicant or patentee to make amendment shall not be called in question except on the ground of fraud.".

43. In section 60 ofthe principal Act, in sub-section (1), for the words, brackets and figures "prescribed period or within that period as extended under sub-section (3) of section 53", the words, figures and brackets "period prescribed under section 53 or within such period as may be allowed under sub-section (4) of section 142" shall be substituted.

44. In section 61 ofthe principal Act, in sub-section (1), for the words "advertise the application", the words "publish the application" shall be substituted.

45. In section 62 ofthe principal Act,-

(a) in sub-section (1), for the word "advertisement", the word "publication" shall be substituted;

(b) in sub-section (2), for the words "date ofthe advertisement", the words "date ofpublication" shall be substituted.

46. In section 63 ofthe principal Act,-

(a) in sub-section (2), for the word "advertise", the word "publish" shan be substituted;

(b) in sub-section (3), for the words "such advertisement"; the words "such publication" shall be substituted

47. In section 64 ofthe·principal Act, in sub-section (1), for the words "on the petition of any person interested or ofthe Central Government or on a counter-claim in a suit for infringement of the patent, be revoked by the High Court", the words "be revoked on a petition of any person interested or of the Central Government by the Appellate Board or on a counter-claim in a suit for infringement ofthe patent by the High Comt" shall be substituted

48. For section 65 ofthe principal Act, the following section shall be substituted, namely:-

"65. (1) Where at any time after grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which no patent can be granted under sub-section (1) of section 20 ofthe Atomic Energy Act, 1962, it may direct the Controller to revoke the patent, and thereupon the Controller, after giving notice, to the patentee and every other person whose name has been entered in the register as having an interest in the patent, and after giving them an opportunity of being heard, may revoke the patent,

(2) In any proceedings under sub-section (1), the Controller may allow the patentee to amend the complete specification in such manner as he considers necessary instead of revoking the patent." .

49. For section 68 of the principal Act, the following section shall be substituted, namely:-

"68. An assignment of a patent or of a share in a patent, a mortgage, licence or the creation of any other interest in a patent shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the fonn of a document embodying all the tenus and conditions governing their rights and obligations and dulyexecuted.".

50. In section 74 ofthe principal Act, for sub-section (2), the following sub-section shall be substituted, namely:-

"(2) The Cenrral Government may, by notification in the Official Gazette, specify the name ofthe Patent Office.".

Page 13

Amendment of section 60

Amendment of section 61 Amendment of section 62

Amendment of section 63

Amendment of section 64

Substitution ofnew section for section 65 Revocation of patent or amendment ofcomplete specification on directions from Government incases relating to. atomic energy

Substitution of new section for section 68 Assignments, etc, not to be valid unless in writing and duly executed Amendment of section 74.

· Page 14

Amendment ofsection 78.

Amendment ofsection 84.

Amendment of section 87

Amendment ofsection 90.

Insertion of new section 92A.

Compulsoxy licence for export of patented pbamlaceutica1 products in certain exceptional circumstances.

Amendment ofsection 100.

51. In section 78 ofthe principal Act,- (aj in sub-section (4), for the word "advertised", the word "published" shall be

substituted;

(b) in sub-section (5), for the words "such advertisement", the words "such publication" shall be substituted.

'52. In section 84 ofthe principal Act,- (a) in sub-section (1), for the word "sealing", the word "grant" shall be substituted;

(b) in sub-section (6), the following Explanation. shall be inserted at the end, namely,-

'Explanation.-For the purposes of clause (iv), "reasonable period" shall be construed as a period not ordinarily exceeding a period ofsix months.'.

53. In section 87 ofthe principal Act, in sub-section (1), for the words "shall advertise the application in the Official Gazette", the words "shall publish the application in the official journal" shall be substituted.

54. In section 90 ofthe principal Act, in sub-section (1), for clause (vii), the following clauses shall be substituted, namely:- .

"(vii) that the licence is granted with a predonlinant purpose of supply in the Indian market and that the licensee may also export the patented product, ifneed be in accordance with the provisions of sub-clause (iii) of clause (a) of sub-section (7) of section 84;

(viii) that in the case of semi-conductor technology, the licence granted is to work the invention for public non-commercial use;

(ix) that in case the licence is granted to remedy a practice determined after judicial or administrative process to be anti-competitive, the licensee shall be perI!'itted to export the patented product, if need be.".

55. After section 92 of the principal Act, the following section shall be inserted, namely:-

'92A. (1) Compulsory licence shall be available for manufacture and export of patented pharmaceutical products to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problems, provided compulsory licence has been granted by such country or such country has, by notification or otherwise, allowed importation of the patented pharmaceutical products from India.

(2) The Controller shall, on receipt of an application in the prescribed manner, grant a compulsory licence solely for manufacture and export of the concerned pharmaceutical product to such country under such terms and conditions as may be specified and published by him.

(3) The provisions of sub-sections (1) and (2) shall be without prejudice to the extent to which pharmaceutical products produced under a compulsory licence can be exported under any other provision of this Act.

o Explanation.-For the purposes of this section, "pharmaceutical products" means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address public health problems and shall be inclusive of ingredients necessary for their manufacture and diagnostic kits required for their use.'.

56. In section 100 ofthe principal Act, in sub-section (3), for the words "the acceptance ofthe complete specification in respect of the patent", the words "grant of the patent" shall be substituted.

380f2002

38 of2002.

380f2002.

380f2002.

57. In section 105 ofthe principal Act, in sub-section (4), for the words "after the date ofadvertisement of acceptance ofthe complete specification of a patent", the words "after the pUblication of grant of a patent" shall be substituted.

58. In section 107A ofthe principal Act,-

(a) in clause (a),-

(0 for the words "using or selling", the words "using, selling or importing" shall be substituted;

(iO for the words "use or sale,", the words "use, sale or import" shall be . substituted;

(b) in clause (b), for the words "who is duly authorised by the patentee to sell or. distribute the product", the words "who is duly authorised under the law to produce and sell or distribute the product" shall be substituted.

59. In section 113 ofthe principal Act,-

(a) for sub-section (1), the following sub-section shall be substituted, nameiy:-

"(1) Ifin any proceedings before the Appellate Board or a High Court for the revocation of a patent under section 64 and section 104, as the case may be, the validity of any claim ofa specification is contested and that claim is found by the Appellate Board or the High Court to be valid, the Appellate Board or the High Court may certify that the validity of that claim was contested in those proceedings and was upheld.";

(b) for sub-section (3), the following sub-section shall be substituted, namely:-

"(3) Nothing contained in this section shall be construed as authorising the courts or the Appellate Board hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.".

60. In section 116 of the principal Act fas substituted by section 47 of the Patents (Amendment) Act, 2002], in sub-section (2), cJause (c) shall be omitted.

61. In section 117A of the principal Act [as inserted by section 47 of the Patents (Amendment) Act, 2002], in sub-section (2), for the words and figures "section 20, section 25, section 27, section 28", the words, figures and brackets "section 20, sub-section (4) of section 25, section 28" shall be substituted.

62. In section 117D of the principal Act [as inserted by section 47 of the Patents (Amendment) Act; 2002], in sub-section (1), for the words, "for rectification ofthe register", the words and figures "for revocation of apatent before the Appellate Board under section 64 anq an application for rectification ofthe register" shall be substituted.

63. For section 117G ofthe principal Act [as inserted by the Patents (Amendment) Act, 2002], the following section shall be substituted, namely:-

" 117G All cases ofappeals against any order or decision ofthe Controller and all cases pertaining to revocation of patent other than on a c01mter-cJaim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Centra! Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.".

64. In section 120 ofthe principal Act, for the words, "ten thousand rupees", the words "one lakh rupees" shall be substituted.

Page 15

Amendment of section 105

Amendment of section 107A.

Amendment of section 113.

Amendment of section 116. Amendinent of section 117A.

Amendment of section 117D.

Substitution ofnew section for section 117G Transfer of pending proceedings to Appellate Board

Amendment of section 120.

Page 16

Amendment of section 122. Amendment of section 123.

Amendment of section 126.

Substitution of new section for section 133. Convention countries.

Amendment of section 135.

Amendment of section 138.

Amendment of section 142. Substitution ofnew section for section 143.

Restrictions upon publication of spec;ification.

65. In section 122 of the principal Act, in sub-section (1), for the words "twenty thousand rupees", the words "ten lakh rupees" shall be substituted.

66. In section 123 ofthe principal Act, for the words "ten thousand rupees in the case of a first offence and forty thousand rupees", the words "one lakhrupees in the case ofa:first offence and five lakh rupees" shall be substituted.

67. In section 126 ofthe principal Act,-

(a) in sub-section (1), in clause (c), sub-clause (0 shall be omitted;

(b) in sub-section (2), for the words, brackets and figures "the Patents 38 of 2002. (Amendment) Act, 2002", the words, brackets and figures "the Patents (Amendment) Act, 2005" shall be substituted.

68. For section 133 of the principal Act, the following section shall be substituted, namely:-

"133. Any country, which is a signatory or party or a group of countries, union of countries or inter-governmental organisations which are signatories or parties to an international, regional or bi-Iateral treaty, convention or arrangement to which India is also a signatory or party and which affords to the applicants for patents in India or to citizens of India similar privileges as are granted to their own citizens or citizens to their member countries in respect of the grant of patents and protection of patent rights shall be a convention country or convention countries for the purposes ofthis Act.".

69. In section 135 ofthe principal Act, after sub-section (2), the following sub-section shall be inserted, namely:-

"(3) In case of an application filed under the Patent Cooperation Treaty designating India and clairrring priority from a previously filed application in India, the provisions of sub-sections (1) and (2) shall apply as ifthe previously filed application were the basic application:

Provided that a request for examination under section lIB shall be made only for one ofthe applications filed in India.".

70. In section 138 ofthe principal Act, for sub-section (1), the following sub-section shall be substituted, namely:-

"(1) Where a convention application is made in accordance with the provisions ofthis Chapter, the applicant shall furnish, when required by the Controller, in addition to the complete specification, copies ofthe specifications or corresponding documents filed or deposited by the applicant in the patent office of the convention country as referred to in section 133 verified to the satisfaction of the Controller, within the prescribed period from the date of communication by the Controller.".

71. In section 142 ofthe principal Act, in sub-section (4), for the words "the complete specification", the words "the application" shall be substituted.

72. For section 143 of the principal Act, the following section shall substituted, namely:-

"143. Subject to the provisions of Chapter VII, an application for a patent, and any specification filed in pursuance thereof, shall not, except with the consent of the applicant, be published by the Controller before the expiration ofthe period prescribed under sub-section (1) of section llA or before the same is open to public inspection in pursuance of sub-section (3) of section llA or section 43.".

t

73. For section 145 of the principal Act, the following section shall substituted, namely:-

"145. The Controller shall publish periodically an official journal which shall contain such infonnation as may be required to be pUblished by or under the provisions

of this Act or any rule made thereunder." .

74. In section 151 ofthe principal Act,-

(a) in sub-section (1), for the words "the High Court", occurring at both.the places, the words "the High Court or the Appellate Board" shall be substituted;

(b) in sub-section (3), for the word "courts", the words "Appellate Board or the courts, as the case may be," shall be substituted.

75.. Section 152 ofthe principal Act shall be omitted.

76. In section 159 ofthe principal Act,- (i)

in sub-section (2),-

(a) for clauses (ia) and (ib), the following clauses shall be substituted, namely:-

"(ia) the period which the Controller may allow for filing of statement and undertaking for in respect of applications under sub-section (1), the period within which the details relating to processing of applications may be filed before the Controller and the details to be furnished by the applicant to the Controller under sub-section (2) ofsection 8;

(ib) the period within which a reference to the deposit of inaterials shall be made in the specification under sub-clause (A) of clause (ii) of the proviso to sub-section (4) of section 10;

(ic) the period for which application for patent shall not be open to the public under sub-section (1) and the manner in which the applicant may make a request to the Controller to publish his application under sub- section (2) ofsection 11 A;

(id) the manner of making the request for examination for an application for patent and the period within which such examination shall be made under sub-sections (1) and (3) of section lIB;

(ie) the manner in which an application for withdrawal of an application for grant of a patent shall be made and the period within which a request for examination from the date ofrevocation of secrecy directions shall be made under the proviso to sub-section (4) of section 11B.";

(b) in clause (ii), for the word "advertised", the word "published" shall be substituted;

(c) for clause (v), the following clauses shall be substituted, namely:-

H(V) the manner in which and the period within which the Controller shall consider and dispose off a representation under sub-section (1) of section 25;

(va) the period within which the Controller is required to dispose off an application under section 39;";

Page 17

Substitution of new section for section 145.

Publication of official journal.

Amendment of section 151.

Omission ofsection 152.

Amendment of section 159.

Page 18

(ii) in sub-section (3), the following proviso shall be added at the end, namely:-

"Provided that the Central Government may, if it is satisfied that the circumstances exist which render it practically not possible to comply with such condition ofprevious publication, dispense with such compliance.".

Omission of 77. Section 163 ofthe principal Act shall be omitted section 163

Transitional 78. (1) Notwithstanding the omission ofChapter N A ofthe principal Act by section 21 provision. of this Act, every application for the grant of exclusive marketing rights filed under that

Chapter before the 1st day ofJanuary, 2005, in respect of a claim for a patent covered under sub-section (2) of section 5 ofthe principal Act, such application shall be deemed to be treated as a request for examination for grant ofpatent under sub-section (3) of section lIB

Repeal and saving_

ofthe principal Act, as amended by this Act. .

(2) Every exclusive right to sell or distribute any article or substance in India granted before the 1st day ofJanuary, 2005 shall continue to be effective with the same terms and conditions on which it was granted.

(3) Without prejudice to any ofthe provisions ofthe principal Ac+.., the applications in respect ofwhich exclusive rights have been granted before the 1 st day ofJanuary, 2005 shall be examined for the grant ofpatent immediately on the commencement ofthis Act

(4) All suits relating to infringement of the exclusive right granted before 1st day of January, 2005 shall be dealt with in the same manner as if they were suits concerning infringement ofpatents under Chapter XVIII ofthe principal Act.

(5) The examination and investigation required as carried out for the grant of exclusive right shall not be deemed in any way to warrant the validity of any grant of exclusive right to sell or distribute, and no liability shall be incurred by the Central Government or any officer thereofby reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.

79. (1) The Patents (Amendment) Ordinance, 2004 is hereby repealed. Ord. 7 of .......---.--.----...... 2004.

(2) Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance shall be deemed to have been done or taken under the corresponding provisions ofthe principal Act, as amended by this Act.

T.KVISWANATHAN, Secy, to the Gov!. ofIndia.

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