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PATENTS (AMENDMENT) ACT, 2005

Ministry of Law and Justice

Act nº 15 of 2005


  • Act nº 15 of 2005

Preamble

THE PATENTS (AMENDMENT) ACT, 2005

[Act, No. 15 of 2005]

[5th April, 2005]

PREAMBLE

An Act to further to amend the Patents Act, 1970.

Section 1. Short title and commencement

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

(2) Sub-clause (ii) of clause (a), and clause (b), of section 37, sections 41, 42, 47, 58 to 62 (both inclusive) and 73 shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint;1 and the remaining provisions shall be deemed to have come into force on the 1st day of January, 2005.

1. Enforcement date for "Sections 37(a)(ii) and (b), 41, 42, 47, 59, 60, 61, 62, 63 and 74 as notified by Notification No. S.O. 509(E) Dated 02.04.2007 is 02.04.2007.


Section 2. Amendment of section 2

In section 2 of the Patents Act, 1970 (39 of 1970. ) (hereinafter referred to as the principal Act), in sub-section (1),-

(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 of April, 1977, as amended and modified from time to time;';

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

(c) clause (g) shall be omitted;

(d) in clause (h),-

(i) in sub-clause (iii), after the words and figures "the Companies Act, 1956 (1 of 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 may be;';

(f) for clauses (l) and (m), the following clauses shall be substituted, namely:-

'(l) "Opposition Board" means an Opposition Board constituted under sub-section (4) of section 25;

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

Section 3. Amendment of section 3

In section 3 of the principal Act,-

(a) in clause (d), for the words "new use", the words "mere new use" shall be substituted;

(b) for clause (k), the following clauses shall be substituted, namely:-

"(k) a computer programme per se other than its technical application to industry or a combination with hardware;

(ka) a mathematical method or a business method or algorithms;".

Section 4. Omission of section 5

Section 5 of the principal Act shall be omitted.

Section 5. Amendment of section 7

In section 7 of the principal Act,-

(a) after sub-section (1A), the following sub-section shall be inserted, namely:-

"(1B) The filing date of an application referred to in sub-section (1A) 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.".

Section 6. Amendment of section 8

In section 8 of the principal Act,-

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

(i) 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;

(ii) in clause (b), for the words "upto the date of the acceptance of his complete specification filed in India", the words "upto the date of grant of patent in India" shall be substituted;

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

"(2) At any time after an application for patent is filed in India and till the grant of a patent or refusal to grant of 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 country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.".

Section 7. Amendment of section 9

In section 9 of the principal Act,-

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

"(1) 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 provisional specification, a complete specification shall be filed 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 of filing of the earliest provisional specification.";

(c) for sub-sections (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 time 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 of the complete specification", the words "grant of patent" shall be substituted.

Section 8. Amendment of section 10

In section 10 of the principal Act,-

(a) in sub-section (3), for the words "before the acceptance of the 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,-

(i) 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 international 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 of the 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 of this Act.".

Section 9. Amendment of section 11

In section 11 of the 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 within 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 of that claim shall be the date of the previously filed application in which the matter was first disclosed.";

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

Section 10. Amendment of section 11A

In section 11A of the principal Act,-

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

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

(2) The applicant may, in the prescribed manner, request the Controller 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 of the period 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 "of eighteen 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 of publication of the 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 of publication 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 of January, 2005 shall accrue from the date of grant of the patent.".

Section 11. Amendment of section 11B

In section 11B of the principal Act,-

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

"(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, namely:-

"(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 prescribed manner and within the prescribed period by the applicant or any other interested person.";

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

(i) the words, brackets and figure "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 prescribed 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 of revocation of the secrecy direction.";.

Section 12. Amendment of section 12

In section 12 of the principal Act,-

(a) in sub-section (1), for the words, brackets, figures and letter "under subsection (1) or sub-section (2) or sub-section (3) of section 11B, the application and specification and other documents shall be referred to by the Controller", the words, brackets, figures and letter "under sub-section (1) or sub-section (3) of section 11B, the application and specification and other documents related thereto shall be referred at the earliest by the Controller" shall be substituted;

(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.

Section 13. Amendment of section 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.

Section 14. Substitution of new sections for sections 14 and 15

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

"14. Consideration of the report of examiner by Controller.-- 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 of the application, the specification or other documents to ensure compliance with the provisions of this Act or of the 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 of being heard.

15. Power of Controller to refuse or require amended applications, etc., in certain cases.-- Where the Controller is satisfied that the application or any specification 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.".