Understanding Patents in Industrial Property Rights: Evolution, Criteria, and Indian Context

A patent is often described as a bargain between an inventor and the state – the inventor discloses their creation to the public, and in return, the state grants them an exclusive right to exploit it commercially for a fixed period. This exchange sits at the very heart of industrial property rights. For Indian law students, understanding patents means tracing a legal journey that stretches from colonial legislation in 1856 to a globally aligned regime shaped by the WTO’s TRIPS Agreement. The story is not just one of legal reform – it reflects India’s broader struggle to balance innovation incentives with public interest, particularly in access to medicines.

What is a patent? 🔗

At its core, a patent is a monopoly right granted by the government to an inventor in exchange for the complete public disclosure of their invention. As Intellectual Property India (the official portal of the Indian Patent Office) explains, a patent gives the patentee an exclusive right to make, use, offer for sale, sell, or import the patented product or process within the country for a fixed duration. Once the patent term expires, the invention enters the public domain and anyone can use it freely. Patent rights are also strictly territorial – a patent granted in India has no legal force in another country, and vice versa.

This structure means patents serve two simultaneous goals: rewarding inventors with a temporary monopoly and enriching the public knowledge base through mandatory disclosure. That dual purpose – incentive and disclosure – has shaped every major patent law reform India has undertaken.

The colonial origins of Indian patent law 🔗

India’s patent system did not emerge organically. It was built, brick by brick, to serve the commercial interests of British colonial rule. The Indian Patent Office’s official history records that the first patent legislation in India was Act VI of 1856. Its stated objective was to encourage inventions of new and useful manufactures and to induce inventors to disclose their inventions. However, this Act was repealed almost immediately by Act IX of 1857 because it had been enacted without the approval of the British Crown – a reminder that even colonial legislation required sovereign sanction.

In 1859, fresh legislation was introduced as Act XV of 1859. This new Act granted exclusive privileges only to useful inventions (not merely new ones), extended the priority period from six to twelve months, and notably excluded importers from the definition of “inventor.” The Act was modelled on the United Kingdom Act of 1852 but with certain modifications tailored to the Indian context – including allowing assignees to apply for patents and treating prior public use in either India or the United Kingdom as relevant for determining novelty.

The Indian Patents and Designs Act, 1911 🔗

Several incremental amendments followed through the 1880s and 1890s, largely mirroring updates in British patent law. The real consolidation came with the Indian Patents and Designs Act, 1911 (Act II of 1911), which replaced all prior legislation and, for the first time, brought patent administration under the management of a Controller of Patents. Subsequent amendments in 1920 allowed reciprocal priority arrangements with the UK and other countries; amendments in 1930 increased the patent term from 14 to 16 years and introduced provisions for secret patents and patents of addition.

Despite its structural improvements, the 1911 Act was fundamentally oriented toward foreign interests. As the R K Dewan patent attorneys’ analysis notes, a post-independence enquiry committee observed that the Indian patent system had failed in its main purpose of stimulating invention among Indians and encouraging domestic exploitation of new technologies. Most patents granted during the colonial period went to foreign inventors and multinational corporations.

Post-independence reform: the Patents Act, 1970 🔗

After independence in 1947, the Indian government moved to redesign the patent system to serve Indian needs rather than colonial ones. The process was deliberate and extended over two decades. In 1949, a Patent Enquiry Committee was constituted under Justice Bakshi Tek Chand. In 1957, the government appointed Justice N. Rajagopala Ayyangar to further examine the question of patent law revision. The Ayyangar Committee’s 1959 report recommended retaining the patent system but with major structural changes – chiefly to prevent the abuse of patent monopolies by foreign companies in critical sectors like pharmaceuticals.

After two failed bills in 1965 and 1967, the Patents Act, 1970 was finally enacted and brought into force on 20 April 1972. This was a landmark statute – the first comprehensive patent law written entirely by the Indian legislature. Its most significant feature was the exclusion of product patents for food, medicines, drugs, and substances produced by chemical processes. Only process patents were allowed in these areas, and even those carried shorter terms. This was a deliberate policy choice to allow Indian pharmaceutical companies to manufacture generic versions of patented drugs through alternative processes, which laid the foundation for India becoming one of the world’s leading generic drug manufacturers. Research published by the US International Trade Commission confirms that this regime substantially enabled the growth of domestic pharmaceutical firms while foreign market share declined.

Criteria for patentability in India 🔗

Whether under the 1970 Act or its post-TRIPS amended form, the core legal test for granting a patent in India rests on three pillars. Section 2(1)(j) of the Patents Act, 1970 defines an “invention” as a new product or process involving an inventive step and capable of industrial application. These three elements – novelty, inventive step, and industrial applicability – together form the basic gateway to patent protection.

Novelty 🔗

Novelty means the invention must not have been anticipated by any prior publication, prior use, or prior knowledge anywhere in the world before the date of filing the patent application. Section 2(1)(l) of the Act defines “new invention” as any invention or technology that has not been anticipated by publication in any document or used in the country or elsewhere in the world before the filing date. India follows the standard of absolute novelty – even a single prior disclosure anywhere in the world destroys novelty. In the landmark case of F. Hoffmann-La Roche AG v. Cipla Ltd. (2015), the Delhi High Court reinforced that novelty must be assessed against the entire corpus of prior art, including scientific literature and prior patent applications globally.

Inventive step 🔗

Inventive step (sometimes called non-obviousness) is defined under Section 2(1)(ja) as a feature of an invention that involves a technical advance compared to existing knowledge, or has economic significance, or both – and that makes the invention not obvious to a person skilled in the relevant art. The Supreme Court addressed this in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, where it held that a mere workshop improvement or an obvious adaptation of a prior known process does not qualify as an inventive step. The test, in essence, asks: would someone with ordinary expertise in the field have arrived at this invention without creative effort? If yes, the inventive step fails.

Industrial applicability 🔗

Industrial applicability is defined under Section 2(1)(ac): the invention must be capable of being made or used in some kind of industry. As The Law Codes explains, this requirement excludes purely abstract or theoretical concepts that cannot be physically produced or used in a commercial setting. Industry, for this purpose, is interpreted broadly – it includes agriculture, fishery, and other economic sectors. An invention that exists only as an idea on paper, without any pathway to practical production or use, cannot qualify.

Beyond these three positive criteria, Sections 3 and 4 of the Patents Act list categories that are not patentable – these include mere discoveries of scientific principles, mathematical methods, aesthetic creations, mental acts, and inventions relating to atomic energy. These exclusions function as gatekeepers to prevent the patent system from being used to monopolise fundamental knowledge.

TRIPS and the transformation of Indian patent law 🔗

India’s accession to the World Trade Organization in 1995 and its commitments under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) required a fundamental restructuring of the 1970 Act. TRIPS mandated that member countries provide patent protection in all fields of technology, including pharmaceuticals and food products, for a minimum term of 20 years from the date of filing. This directly conflicted with India’s process-only patent regime for drugs.

India negotiated a transition period as a developing country and implemented the TRIPS requirements through three successive amendments:

The Patents (Amendment) Act, 1999 introduced a “mailbox” provision – allowing applications for pharmaceutical product patents to be filed and stored, without examination, until the TRIPS deadline of 1 January 2005. It also provided for Exclusive Marketing Rights (EMRs) as an interim protection mechanism. The Patents (Amendment) Act, 2002 extended the patent term to 20 years across all categories (up from 14 years), redefined patentable subject matter, and reformed the compulsory licensing framework. The critical Patents (Amendment) Act, 2005 completed India’s TRIPS compliance by reintroducing product patents for pharmaceuticals, chemicals, and food products – ending the 33-year-old exclusion under the 1970 Act.

Section 3(d) and the anti-evergreening safeguard 🔗

The 2005 amendment did not simply hand pharmaceutical multinationals an open field. Alongside the reintroduction of product patents, Parliament enacted Section 3(d) of the Patents Act – a provision with no direct parallel in any other jurisdiction at the time. Section 3(d) provides that a new form of a known substance (such as a salt, polymorph, or isomer) is not patentable unless it results in a significantly enhanced efficacy of the known substance.

The purpose was to prevent evergreening – the practice of pharmaceutical companies extending their patent monopolies by obtaining new patents on minor, non-substantive modifications of existing drugs. As the National Law Review explains, Section 3(d) effectively establishes a second-tier patentability test for pharmaceutical substances, over and above the standard criteria of novelty and inventive step.

The most high-profile test of Section 3(d) came in the Supreme Court’s 2013 ruling in Novartis AG v. Union of India, where the Court rejected Novartis’s patent application for the beta-crystalline form of Imatinib Mesylate (the cancer drug sold as Glivec). The Court held that for pharmaceutical substances, “efficacy” under Section 3(d) means exclusively therapeutic efficacy – improved physical properties like better absorption or stability are insufficient. This judgment firmly established India’s anti-evergreening doctrine and continues to shape pharmaceutical patent litigation in the country.

The patent term and administration today 🔗

Under the current framework, patents in India are granted for a term of 20 years from the date of filing – whether for ordinary applications, convention applications (filed through the Paris Convention route), or international applications under the Patent Cooperation Treaty (PCT). Annual renewal fees must be paid to keep the patent in force. The patent system is administered by the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), with four patent offices located in Delhi, Kolkata, Chennai, and Mumbai.

India joined the Paris Convention on 7 December 1998, allowing Indian applicants to claim priority from foreign filings and vice versa. The country is also a signatory to the Budapest Treaty (for microorganism deposits) and complies with the Madrid Protocol for trademarks. These international engagements have progressively integrated India’s IP regime into the global framework while retaining certain uniquely Indian safeguards, such as the Traditional Knowledge Digital Library (TKDL), which documents indigenous knowledge to prevent bio-piracy.

The broader picture: balancing monopoly with public interest 🔗

India’s patent history is ultimately a story about the tension between two legitimate but competing interests. On one side is the need to reward and incentivise genuine innovation – particularly as India positions itself as a growing hub for pharmaceuticals, biotechnology, and information technology. According to data tracked by Babaria IP, over 83,000 patent applications were filed in India in 2022-23, with nearly half coming from Indian applicants – a significant shift from the colonial era when most patents went to foreigners.

On the other side is the imperative that monopoly rights not be used to price essential medicines out of reach for millions of patients in a developing country. India’s compulsory licensing provisions, the pre-grant and post-grant opposition mechanisms, and Section 3(d) together form a robust set of checks that distinguish India’s patent regime from those of the developed world. This approach – sometimes described as a “middle path” – has drawn criticism from multinational corporations but earned recognition from global health advocates for keeping generic medicines accessible.

What makes the Indian patent system particularly significant is that it did not simply copy TRIPS – it interpreted TRIPS strategically. The 2005 amendments complied with international obligations while embedding distinctly Indian policy choices into the law. That balance between compliance and national interest continues to define how patent law operates in India today.

What do you think? Given that India has historically used its patent law to protect public access to medicines, how should the system evolve as the country increasingly becomes an innovation-driven economy – should the balance shift more toward stronger patent protection, or is the current framework adequate? And with emerging fields like artificial intelligence and biotechnology raising new patentability questions, how do you think Indian courts should interpret the existing criteria of novelty, inventive step, and industrial applicability to deal with inventions that don’t fit traditional categories?

References

1. https://ipindia.gov.in/history-of-indian-patent-system.htm
2. https://www.ipindia.gov.in/Patents/history_of_indian_patent_system
3. https://www.rkdewan.com/blogs/patent-system-in-india/
4. https://www.usitc.gov/publications/332/journals/pharm_fdi_indian_patent_law.pdf
5. https://ssrana.in/ufaqs/what-is-new-invention-within-the-meaning-of-indian-patents-act/
6. https://thelawcodes.com/article/industrial-applicability/
7. https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
8. https://natlawreview.com/article/section-3d-indian-patents-act-part-i
9. https://babariaip.com/blog/a-brief-history-of-the-patent-system-in-india/