Page 192 - DMGT401Business Environment

Unit 8: Legal Environment

(b) Software: Software would now be patentable if embedded with hardware. Currently, Notes
the Intellectual Property Rights (IPRs) protection with regard to software is limited
to copyrights. This means that software embedded in hardware application like
mobile phones, TVs and computers are patentable.
Now it is possible to patent programmes for computers that when run on a compute
produce a 'technical effect'. However, if a programme does not produce a technical
effect when run on a computer, it is unlikely to be patentable. A technical effect is
generally an improvement in technology and needs to be in an area of technology
that is patentable. So any new software that can improve the functioning of washing
machines automobiles, mobile phones or even computers can be patentable, but a
simple spreadsheet for writing text still falls under the copy right regime.

(c) Micro-organism and Microbiological Process: The TRIPs Agreement has not defined
micro-organism and microbiological process. The question is whether the micro
organism, existing freely, are patentable, or their mere isolation in pure form are
patentable or human intervention, in establishing a level of novelty in the discovered
micro-organism, is needed for patenting.
The next question is whether a product produced by a micro-organism, which is
known can be patentable, or the process is patentable. In the absence of a clear
definition of micro-organism and micro biological process in the TRIPs Agreement.
Lack of clarity in the third amendment, claims in gene patent applications may
pertain to genes or partial DNA sequence, proteins encoded by these genes, vectors
used for transfer of genes, genetically modified micro-organism, cells, plants and
animals and the process of developing a transgenic product. All these may lead to
multiple rights, owned by multiple actors, called patent thickets over a final product.
Hence there are problems of not only patent thickets but also of royalty staking and
reach through claims.
(d) "Mere" new use: Earlier 'new use for a known substance' could not be patented.
However, the new ordinance provides that "mere new use for a known substance"
cannot be patented. The insertion of a single word 'mere' would open the floodgates
for pharmaceutical product patents. The word 'mere' restricts the scope of non-
patentable subject matter and widens the scope of patentability.

(e) Infringement: A person who infringes a patent by making or using a patented invention
without permission can be sued by the patent holder for damages. Perhaps the most
distinctive feature of patents in comparison to copyright law is that it is possible to
infringe a patent unintentionally and that this makes no difference to liability for
damages.
2. Mail Box Application: The Mail box application for product patents that were filed from
January 1, 1995 until December 31, 2004 will now be examined for grant of patents rights.
Nearly 12,000 patents applications, a majority of them from multinational pharma
companies, would be opened by the government as it has compiled it with WTO obligations.
(The Economic Times, 28th December 2004)
Only upon the actual grant of patent will the patentee be able to prevent others from
exploiting his invention. The grant of patent will typically take anywhere between 1 to 3
years from applications that depending on the backlog of work in various branches of the
patent office. The products that are patented abroad but for which no corresponding
patent applications were filled in India, will continue to be open for exploitation in India.
A patent term of 20 years will be calculated from the date of the application and not from
the day the patent was granted.

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