The Patents (Amendment) Act, 2002 - Legislation - VLEX 29636539

The Patents (Amendment) Act, 2002

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THE PATENTS (AMENDMENT) ACT, 2002 ACT NO. 38 OF 2002

[25th June, 2002.]

An Act further to amend the Patents Act, 1970.

BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:-

1.

Short title and commencement.

1. Short title and commencement.-(1) This Act may be called the Patents (Amendment) Act, 2002.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencem nt of this Act shall be construed as a reference to the coming into force of that provision.

2.

Substitution of certain words for the words "High Court" and "Court".

2. Substitution of certain words for the words "High Court" and

"Court".-In the Patents Act, 1970 (39 of 1970) (hereinafter referred to as the principal Act), for the words "High Court" wherever they occur in sections 21, 43 and 71 and the word "Court" o curring in sections 21 and 71, the words "Appellate Board" and "Board" shall respectively be substituted.

3.

Amendment of section 2.

3. Amendment of section 2.-In section 2 of the principal Act, in sub-section (1),-

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

'(a) "Appellate Board" means the Appellate Board referred to in section 116;

(ab) "assignee" includes an assignee of the assignee and the legal representative of a deceased assignee and references to the assignee of any person include references to the assignee of the legal representative or assignee of that person;

(ac) "capable of industrial application", in relation to an invention, means that the invention is capable of being made or used in an industry;';

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

'(d) "convention country" means a country or a country which is member of a group of countries or a union of countries or an Inter-governmental organisation notified as such under sub-section (1)

of section 133;';

(c) for clause (g), the following clause shall be substituted, namely:-

'(g) "food" means any article of nourishment for human consumption and also includes any substance intended for the use of infants, invalids or convalescents as an article of food or drink;';

(d) in clause (i),-

(i) in sub-clause (i), for the words "Union territory of Delhi", the words "National Capital Territory of Delhi" shall be substituted;

(ii) for sub-clause (ii), the following sub-clause shall be substituted, namely:-

"(ii) in relation to the State of Arunachal Pradesh and the State of Mizoram, the Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh);";

(iii) in sub-clause (v), for the words "Union territory of Goa, Daman and Diu", the words "State of Goa, the Union territory of Daman and Diu" shall be substituted;

(e) after clause (i), the following clause shall be inserted, namely:-

'(ia) "international application" means an application for patent made in accordance with the Patent Cooperation Treaty;';

(f) for clause (j), the following clauses shall be substituted, namely:-

'(j) "invention" means a new product or process involving an inventive step and capable of industrial application;

(ja) "inventive step" means a feature that makes the invention not obvious to a person skilled in the art;';

(g) for clause (m), the following clause shall be substituted, namely:-

'(m) "patent" means a patent granted under this Act;';

(h) after clause (o), the following clause shall be inserted, namely:-

'(oa) "Patent Cooperation Treaty" means the Patent Cooperation Treaty done at Washington on the 19th day of June, 1970 as amended and modified from time to time ; ' ;

(i) for clause (u), the following clause shall be substituted, namely:-

'(u) "prescribed" means,-

(A) in relation to proceedings before a High Court, prescribed by rules made by the High Court;

(B) in relation to proceedings before the Appellate Board, prescribed by rules made by the Appellate Board; and (C) in other cases, prescribed by rules made under this Act.'.

4.

Amendment of section 3.

4. Amendment of section 3.-In section 3 of the principal Act,-

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

''(b) an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;";

(b) in clause (c), after the words "an abstract theory", the words "or discovery of any living thing or non-living substance occurring in nature" shall be inserted;

(c) clause (g) shall be omitted;

(d) in clause (i),-

(i) after the word "prophylactic", the words "diagnostic, therapeutic"

shall be inserted;

(ii) the words "or plants" shall be omitted;

(e) after clause (i), the following clauses shall be inserted, namely:-

"(j) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

(k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;

(o) topography of integrated circuits;

(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.".

5.

Amendment of section 5.

5. Amendment of section 5.-In section 5 of the principal Act, after sub-section (2), the following Explanation shall be inserted, namely:-

'Explanation.-For the purposes of this section, "chemical processes"

includes biochemical, biotechnological and microbiological processes.'.

6.

Amendment of section 7.

6. Amendment of section 7.-In section 7 of the principal Act, after sub-section (1), the following sub-section shall be inserted, namely:-

"(1A) Every international application under the Patent Cooperation Treaty for a patent, as may be filed designating India, shall be deemed to be an application under this Act, if a corresponding application has also been filed before the Controller in I dia.".

7.

Amendment of section 8.

7. Amendment of section 8.-In section 8 of the principal Act,-

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

(i) in the opening portion, after the words "he shall file along with his application", the words "or subsequently within such period as the Controller may, for good and sufficient reasons, allow" shall be inserted;

(ii) for clause (a), the following clause shall be substituted, namely:-

"(a) a statement setting out detailed particulars of such application;

and";

(iii) in clause (b), for the words "details of the nature referred to in", the words "detailed particulars as required under" 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 patent or refusal to grant of patent is made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the proces ing of the application in a country outside India, and in that event the applicant shall furnish information available to him to the Controller within thirty days from the date of receipt of the communication requiring such furnishing of information or w thin such further period as the Controller may, for good and sufficient reasons, allow.".

8.

Amendment of section 10.

8. Amendment of section 10.-In section 10 of the principal Act,-

(a) in sub-section (4), after clause (c), the following clause shall be inserted, namely:-

"(d) be accompanied by an abstract to provide technical information on the invention:

Provided that-

(i) the Controller may amend the abstract for providing better information to third parties; and (ii) if the applicant mentions a biological material in the specification which may not be described in such a way as to satisfy clauses (a) and (b), and if such material is not available to the public, the application shall be completed by depositing t e material to an authorised depository institution as may be notified by the Central Government in the Official Gazette and by fulfilling the following conditions, namely:-

(A) the deposit of the material shall be made not later than the date of the patent application in India;

(B) all the available characteristics of the material required for it to be correctly identified or indicated are included in the specification including the name, address of the depository institution and the date and number of the deposit of the materi l at the institution;

(C) access to the material is available in the depository institution only after the date of the application for patent in India or if a priority is claimed after the date of the priority;

(D) disclose the source and geographical origin of the biological material in the specification, when used in an invention.";

(b) after sub-section (4), the following sub-section shall be inserted, namely:-

"(4A) In case of an international application designating India,-

(i) the title, description, drawings, abstract and claims filed with the application shall be taken as the complete specification for the purposes of this Act; and (ii) the filing date of the application 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.";

(c) for sub-section (5), the following sub-section shall be substituted, namely:-

"(5) The claim or claims of a complete specification shall relate to a single invention, or to a group of inventions linked so as to form a single inventive concept, shall be...

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