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Comparative Analysis of Patent Laws in India with Other Nations


Before we begin with the comparative analysis of patent law in India with other countries, it is important to first know what is the meaning of “Patent” and the “Purpose” for which it finds a place in law.

The literal meaning of “Patent” is to hold an exclusive right or privilege for using or selling some product or invention. It can be for a discovery of a new and functional process, machine, the configuration of matters, or something new and useful improvement. For example, A patent will be given for a technical or industrial process that casts rubber articles into something else by a mathematical equation and also involves a computer program.

The main purpose behind the enactment of the patent was to stimulate research in science, technology, and commercial advancement. It gives a monopoly to the inventor to exclusively use their ‘Patented Product’ and if some other person or institution wants to use it, they have to get permission first. In that case, some considerations are eligible to be imposed which also includes the prescribed period for using the patented product.

Indian Patent Act, 1970

Before this Act, there were many alterations and remoulding done in the field of ‘Patent Laws’. In British time, it was used to be governed by Act VI of 1856 which acknowledged protection for a period of 14 years. After that, it was the Indian Patents & Designs Act, 1911 which again underwent many refinements, and Indian Patent Act, 1970 was introduced. 

In 1999, it was again amended according to the TRIPS Agreement (Trade-Related Aspect of Intellectual Property Rights and then in 2002 and 2005. The 2005 Amendment introduced ‘Product Patent’. It sanctioned patents against all fields of technology incorporating food, drugs, chemicals, and microorganisms. It even included pre-grant and post-grant opposition.

What can be Patented

In Section 3 of the Indian Patents Act, 1970, nothing is written regarding what things are capable of being patented but it lays down the list that what cannot be patented as an invention under the Act. These are:

  1. Computer Programmes
  2. Mathematical Methods
  3. Scientific Discoveries
  4. Plant and Animal Varieties
  5. Biological Processes

The list goes further. Also, these exceptions are dealt with in Article 52 (2) and Article 53 of the EPC.

Analysis of Patent Law in India with EU

The patent law in India is heavily directed by European law as it got modelled on the British Patent System. But still, there are differences that reside when we begin to compare. India’s patent system goes for more quality patents and that is why the registration, rules, and regulations are strict whereas the EU seems to be less strict and hence requires fewer demanding processes. Some of the differences can be seen in the following cases:

  1. In terms of filing
    In India, the patent will be given to the individual who will first fill out the application form no matter at what actual date it was invented or created whereas in the case of the EU, whoever’s application reaches the Patent Office first will have a staunching claim.
  1. Requirement of ‘Best Mode’
    According to Section 10(4) of the Indian Patents Act, 1970, the best mode to carry out the invention should be written in the application whereas EPC does not contain such kind of requirement. There is no obligation on the part of the inventor to disclose the fact regarding ‘Best Mode’ in which it can be carried down. The principal requirement is to state the invention in clear and complete terms.
  1. Official Language
    In India, the applications for patents are accepted only in the language of ‘English’ but in EU, one can fill the application in ‘English’, ‘French’ and ‘German’. Also, EU accepts the translated version but it should be submitted within two months of submitting the application.
  1. Opposition Mechanisms
    Both India and EU have two criteria of opposition- Pre-Grant and Post-Grant. In India, third parties are allowed to enter and take part in the proceeding whereas in EU, third parties are prohibited from taking part in the proceedings. It is done through submission in writing.
  1. Special Protection Certificates
    In India, SPCs are not sanctioned and this found its influence from the case law of Novartis v. Union of India & Others.1 In this case, the Court denied the applicant’s claim to patent its drug which was already a refined form of another patented drug. But this is not in the case of EU. EU sanctions Special Protection Certificates through Regulation (EC) No. 469/2009.

Analysis of Patent Law in India with US

In US, the power to sanction patents is vested with the Patent Office. It gives protection for up to 14 years to those inventions that are “sufficiently useful and important” for the country and the citizens. It is different from the patent laws of India as:

  1. Provides a patent to the individual who first invented the invention and not to the one who first filled out the registration form.
  2. It provides a one-year grace period which means the inventor is authorized to showcase his publication for a time period of one year before filling out the application form for a patent. It is presumed that this one-year time period will not affect the rights of the inventor of the invention.
  3. In US, the principal requirement for sanctioning the patent to the inventor is that it meets the three conditions that are: Novelty, Industrial Applicability and Non-Obvious.
  4. Under the patent system of US, everything should be specified. That includes, written description about the invention and the manner and process it will be used in clear, concise, full and exact terms.
  5. US patent system also deals with the procedure of re-examination, which is not similar to the same as in India. In re-examination, any individual can challenge the validity of the granted patent in USPT Office with proper reasons and evidence.

Analysis of Patent Law in India with UK

The patent system in UK is governed by the UK Patents Act, 1977 and also from European Patent Convention. Here, if analysed UK Patent system is much more expensive than in India but it is very effective also in eliminating fake or flawed patents. In case of weak claims, threat actions and penalties are imposed. If we see, there are many similarities and distinctions too in patent laws of India and of UK. They are:

  1. Requirement of Novelty, Non-Transparency and Non-Obviousness both in India and UK.
  2. Under the Article 54 of EPC in UK and Sections 2(1), 29, 30 and 31 of the Patents (Amendment) Act, 2005 in India, the one-year grace period is not sanctioned to the patentees. If the individual makes his/her work published or exposed to common people before filing for the invention, he/she will naturally and unquestionably will lose future potential rights.
  3. Patent gave to the first person who fills the application form both in India and UK [In the US, it is different as the patent is given to the individual who has invented first not the individual who has first filled out the registration form.
  4. In UK, the patent for business method is not granted whereas in India, if the business method proves to resolve the technical problem and is naturally made, the patent rights will be given but not in the case of individual. [In USA, business methods are valid for patents as long as it is more than just the functioning of a conventional business process.
  5. In the case of Patent Application, it is similar, that is , they are eligible to be published 18 months after the date of submission, unless and until they have been issued.
  6. In UK, there is no re-examination process. If it is sanctioned, a time of 9 months will be given to opposing it. If found invalid, then it will be revoked from all the countries at the same time and if it is valid, then the person can continue to enjoy his/her exclusive rights. [This is different from US, where a re-examination process is present to submit the reason and evidence to the USPT Office to challenge the validity of the patent rights or patent sanctioning.

Analysis of Patent Law in India with China

If we observe, some things are very different in China from India. Like:

  1. The date of filling out the application form. In India, it is 9 months whereas, in China, 12 months is given from the date of priority.
  2. The official Language used is Chinese.
  3. Disclosure of information regarding the invention within six months of entering will not prevent its invention for the first time on an international platform that is in any way connected with the government of China like sponsored or recognized.
  4. The actual examination of the facts and information should be done within three years of filling the registration form.


Sanctioning patent to inventors encourages technical and business inventions. It motivates them to hustle and get exclusive rights which not only gives monetary benefits but also it is a matter of pride and recognition. Though some differences are present in the patent laws of different countries, as a whole, all of them do only one thing, that is – REWARD FOR INVENTION.


  1.  (2013) 6 SCC 1

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

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