The Indian Patents Act 1970

The Patents Act 1970 introduced a system that was largely modeled after the erstwhile existing laws and treaties. However, at the level of the scope of protection, the 1970 Act introduced a number of significant exceptions. First, it generally excluded the patentability of life forms and specifically precluded the patentability of methods of agriculture and horticulture (Section 3, Patents Act 1970). Secondly, the Act rejected the possibility of granting patents in respect of substances intended for use as food, medicine or drug (Section 5, Patents Act 1970). Drugs were deemed to include insecticides, germicides, fungicides and herbicides and all other substances intended to be used for the protection or preservation of plants (Section 2, Patents Act 1970). Thirdly, the Act introduced a distinction between product and process patents in the fields of nutrition and health. While product patents were excluded, process patents were allowed.

The Act also discriminated between different types of inventions with regard to the rights conferred. While the normal duration of patent rights was fourteen years, it was of a reduced period of seven years with respect to processes of manufacture for substances intended for use of food, medicine or drug (Section 53, Patents Act 1970). Further, the Act included a series of measures restricting the rights of patent holders, in particular to encourage use of the invention in India (Chapter XVI, Patents Act 1970 concerning compulsory licences and licences of right). Thus, the Act specifically indicated that the general principles governing the use of patents were that:

a)  patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale; and

b)  they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article (Section 83, Patents Act 1970).

This constitutes the basis for the compulsory licence regime. Under the Patents Act 1970, a compulsory licence could be granted upon application, if after three years it was shown that the reasonable requirements of the public with respect to the patented invention were not satisfied or that patented invention was not available to the public at a reasonable price (Section 90, Patents Act 1970).