Expansion of technology and developments in industrial techniques, which are so vital for the monetary welfare of human civilization, depends largely on the growth of inventions which are capable of industrial application. With the intention of encouraging the invention and manufacturing of new invention and developments in existing invention or the manufacturing processes of the invention, a system of granting a limited authority to the inventors in return of the disclosure of the invention to the common public at large has developed in almost all the countries.
Hence, the above mentioned is the genesis of Patent Law worldwide. Usually, the basic principles of Patent law are generally the same all over the world; certain differences exist mostly in the procedures of each Patent system. However, a few aspects related to Patent Law have been harmonized globally, but there remain many significant differences between the US, EU, and Indian Patent Laws system. In the article, we will do a detailed comparative study of the US, EU, and Indian Patent Laws.
What is the historical background of the US, EU, and Indian Patent Laws?
The historical background of the US, EU, and Indian Patent Laws are as follows:
United States (US)
The very first Patent statute of the US was enacted with the primary object entitled “An Act to promote the Progress of Useful Arts.” The Patent statute passed in the US was a very brief Act that included seven sections. The statute also specified the essential requirement to include “any useful or valuable art, engine, manufacture, machine or device, or any development therein not known or used before.”
The power for granting of patents is vested with the Patent Office. A Patent is granted for a term of up to 14 years for inventions that are “sufficiently useful and important” for the country and its people. The Patent Office will grant the application for Registration of Patent only when the grantee has submitted a complete specification describing the invention or creation to the Secretary of the State at the time of grant of Patent.
After becoming a member of the Paris Convention US, there were primarily two progress in the US influencing the expansion of Patent Law in the country. The two primary progresses were the Evarts Act of 1891 and the Sherman Act of 1890. In the year 1952, the US adopted the structure of modern Patent Law and which led to several amendments in the Patent law structure of the country. The modern Patent law of the US is Title 35 of the United States Code, which also governs all cases in the United States Patent and Trademark Office (USPTO).
Europe (EU)
In Europe, there are two system of Patent which co-exist. As per the regulations of the European Patent Organization or EPO or EPOrg, Patents are granted, which can cover up to 38 European states, including the United Kingdom (UK). The European Patent Organization (EPO or EPOrg) is an inter-governmental organization. The EPO was set up in the year 1977 on October 7, on the foundation of the EPC (European Patent Convention) signed in Munich in the year 1973.
The EPO has two bodies, comprising of the European Patent Office and the Administrative Council. The Administrative Council is established to supervises the activities of the European Patent Office. The European Patent Office is the executive arm of the EPOrg. The European Patent Office provides an even procedure for application for the individual inventors and companies seeking protection of Patent protection in the specified 38 European countries.
In addition to the EPO system of Patent, each of the European states individually have their own system of Patent. The individual European states and the European Patent Organization Patent laws are based on the same principles, although there are certain minor differences also between them.
India
The Patent Law of India dates back to nearly 150 years. The Act of 1856 was recognized as the Act VI of 1856. The 1856 Act was on the protection of inventions of the inventor and was based on the British Patent Law of 1852. The 1856 Act granted certain exclusive privileges to the inventors or creators of new inventions or creations for a time period of 14 years.
The 1856 Act was later on repealed, and The Patents and Designs Protection Act was made public formally in the year 1872. The 1872 Act was also amended from time to time as per the requirements. The 1872 Act was later on changed in to “The Protection of Inventions Act” in the year 1883. In the year 1888, the 1872 Act was changed to “The Inventions and Designs Act.” Finally, in the year 1911, “The Indian Patents and Designs Act” was enacted.
After the independence of India in the year 1947, the country still followed the old British Law related to Patents. The British Law was followed until the year 1965, a Patent Bill was placed before the Parliament of India and later on the Bill was passed as the Indian Patent Act of 1970. The Indian Patent Act, 1970[1], came into force on April 20, 1972. The 1970 Act was further amended in the year 1999, and the Patents (Amendment) Act, 1999, got President’s assent on March 26, 1999.
In the year 1995, India joined the World Trade Organization (WTO) and hence, automatically became a signatory member of the Agreement on TRIPS (Trade-Related Aspects of International Property Rights). To meet the requirements of TRIPS, India needed to amend its current Patent law subject to certain transitional allowances under Article 65 of TRIPS provided for developing countries.
The 1999 Act was further amended, and the Patents (Amendment) Act, 2002 came into effect in the year 2003. Later on, from January 1, 2005, the Patents (Amendment) Act, 2005, has been given effect to overcome the loopholes of the 2002 Act. The Patents (Amendment) Act, 2005, takes care of compliance requirements related to the TRIPS agreement of India. In the year 2005, the latest amendment in the Patent law of India meet the obligation under the TRIPS agreement and provides for the protection of products in the field of drugs, chemicals, and pharmaceuticals.
Read our article:Restoration of Lapsed Patent in India: A Complete Overview
What is the different basis of comparison between US, EU, and Indian Patent Laws?
The different basis of comparison between US, EU, and Indian Patent Laws System are as follows:
First to Invention or First to File
In India and the EU, when two or more persons apply for a patent on a similar invention, the person who files the application of Patent at first is considered by the Office of Patent. Assuming that the invention is patentable, the Patent will be granted to the person who first files the application. The date of filing of application of Patent is considered, and the priority is given to the person who filed the application first. Even in such a case where the second person came up with the invention earlier still if the first person filed the application of Patent, priority will be given to the first person.
However, in the US, in case two or more applications are filed for similar inventions, a determination will be made as to who invented the invention at first. Interference proceedings are held in the US to determine as to who invented the invention at first. Therefore, in the US, the grant of Patent goes to the person who invented the invention first and not to the person who filed for the application of Patent first. Recently in the US, a bill has been introduced to amend the provision of first to invent and change the system to first to file as every Office of Patent in the world is based on the “first to file” system.
Grace Period
There is a difference in the grace period provided to the inventor under the US, EU, and Indian Patent Laws. In the EU and India, the application of Patent will be rejected, if the invention of a person had become available publicly in any way before the application of Patent was filed in the Patent Office. The Publicly availability of a Patent includes a public sale, public use, a publication, giving a lecture about the invention, showing the invention to an investor without an agreement of non-disclosure, publication of an invention in a magazine, or any combination of such acts. The person doing such acts will not make a difference whether the person is the inventor himself/herself, one of the inventors, or any independent third party.
On the contrary, in the US there is a one-year grace period. One-year grace period means that the inventor of the invention has the authority to publish the invention for a period of one year before the filing of the application of Patent. Such a publication for a period of one year will not affect the patent rights of the inventor of the invention. However, in the case where the inventor himself/herself discloses his/her own work more than one year before the filing of application of Patent, then the inventor will be barred from obtaining a Patent.
Requirement of Novelty, Utility and Non-obviousness/ Inventive step
The legal systems of US, EU and Indian Patent Laws have certain features in common for the inventions of persons to be Patentable in the respective countries. The features which are common for the US, EU and Indian Patent Laws are the Novelty, Non-obviousness, or inventive step and utility of the invention invented by a person. In the US the essential requirement of utility is binding in case of utility patents and not in case of other design and plant patents.
In addition to be industrially applicable, there are two most important essential requirements to get an invention patented in the EU and India are that an invention should be novel and also involve an inventive step. As compared to the US the essential requirement for an invention is that the invention should be novel, industrially applicable, and should not be obvious.
Best mode Requirement
The best mode of requirements for US, EU and Indian Patent Laws are different and hence, becomes a primary basis of the difference between the US, EU and Indian Patent Laws. The Patent Law of the US requires the inventor of the invention to include the best way to practice the invention in the application of Patent application.
Under the US patent system, a complete specification of Patent should contain a written description of the invention, the manner and process of using and making the invention, in such clear, concise, full and exact terms as to enable any person skilled in similar art to which the invention of inventor pertains, or with which the invention is most likely be connected, to use and make the invention, and should set out the best method anticipated by the inventor of the invention of carrying out his/her invention.
In India, the applicant of an application of Patent is required to disclose the best technique of carrying out the invention, which is known to the applicant, and protection can be claimed by the inventor. The complete specification of Patent should disclose the best method of carrying out the invention, and in case there is more than one best method of carrying out the invention, the inventor should describe all such best methods in the specification of Patent.
On the contrary, in the EU there is no such requirement to specify the best mode of carrying out an invention. The specifications should include at least any one way of carrying out the invention.
Publication of Patent Applications
The publication of applications of Patent differ in the US, EU and Indian Patent Laws. The US application of Patent are published after 18 months from the date of filing of the application of Patent in the Office of Patent, unless in the cases where the application of Patent is withdrawn or is filed with a request of non-publication.
The above mentioned is a situation similar to the EU and India, where all applications of Patent are published after 18 months from the date of filing, unless an application of Patent is withdrawn by the applicant. The primary difference is that a request for non-publication cannot be made in India and the EU.
Rights conferred by a granted Patent
A Patent of India or US is a property right that is enforceable in the whole territory of both countries. The property right related to a Patent allows the holder of Patent to prevent any person from making, selling or using the invention of the holder of Patent in the country.
The EU Patent holds a unique feature in this context. European Patent Office or EPO only grants European Patent for the member states of the European Patent Convention. An applicant of application of Patent files a single application of European Patent and designates the different countries in Europe in which the applicant wants to have protection of Patent.
The European Patent Office grants the applicant of the application of Patent, the similar Patent rights in the countries he/she designated, as the Patent Office would have granted to the applicant in the case of a national application. A European Patent is thus, sometimes referred to as a ‘bundle of rights.’ Hence, it is clear that the rights conferred under the US, EU and Indian Patent Laws are different.
Opposition after grant of Patent
Once an application of Patent is granted in Europe, any person has the right to oppose the grant of Patent within 9 months from the date of granting of the Patent. If the granted Patent is found to be invalid by the Patent Office, such Patent will be revoked in all other countries simultaneously.
The Patent Law of India only deals with the Patent Opposition, where the application for Patent has been published, but the opposition should be done before the grant of a patent.
Though the US has a procedure of re-examination, which is not similar to the opposition. In re-examination, any person can present proper reasons and valid evidence to the United States Patent and Trademark Office (USPTO) to challenge the validity of a granted Patent.
Language of Patent Application
There are certain differences in the filing of the application of Patent in the US, EU and Indian Patent Laws. The Patent Offices of the US and India only deals in the English language. However, the EU Patent Offices have English, French, and German as their official languages. An application of Patent can be filed in any language, provided that a translation into any one of the official languages should be submitted within 2 months from the date of filing of the application in other languages.
Conclusion
On thoroughly analyzing the US, EU and Indian Patent Laws, it can be held that the procedure of granting of Patent in India is quite similar to that of the EU and completely different from that of the US. Almost every country has its own law of Patent, and when any person desires a Patent in a particular country, then the person is required to make an application for Patent in accordance with the regulations of that country. The rules of patentability are not uniform across the world. An effort should be made to bring all the Patent laws of different countries in compliance with each other. The person requiring a grant of Patent under US, EU and Indian Patent Laws is required to go through a long-lasting and time-taking process. We at Corpbiz have experienced professionals to guide you with the process. Our professionals will assist and help you throughout the process of grant of Patent. Our professionals will ensure the successful and effective completion of your work.
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