[Commons-Law] Fwd: 1970 patent law quick review

[Anivar Aravind]

-------- Original Message --------
From: 	"André Rebentisch" <arebenti at web.de>
To: 	in-parl at ffii.org
Subject: 	1970 patent law quick review
List-Id: 	FFII India <in-parl.ffii.org>


I just read the 1970th. Very detailed.

For a good patent law it is also useful to describe what a patent actually is,
what it is indended for, why it is granted by state and so on.

This is not important for the patent granted under a patent law itself
but for patent law's  further development.
Often attorneys adopt their normative theories from the law. 

1. It has to be stressed that patent law is an incentive system, an
instrument which a state applies to
reach certain effects. I miss something like: Why is there a patent law at all? 

2. The so called property theory has to be rejected which causes so
much confusion.


The problem with the 1970 act is that it says these inventions are not
patentable rather than these issues are no inventions
and thus not patentable.

"CHAPTER II
INVENTIONS NOT PATENTABLE"

where 3. What are not inventions

The following are not inventions within the meaning of this Act, -
a. an invention which is frivolous or which claims anything obvious contrary
to well established natural laws;
b. an invention the primary or intended use of which would be contrary to law
or morality or injurious to public health;
c. the mere discovery of a scientific principle or the formulation of
an abstract
theory;
....


It is somehow illogical to say an invention is a not invention. This
can only be understood when you stress the "within the meaning..."
So there are two subsets "inventions under Indian Patent law" and "
other inventions"

Undefined however is what's a non-invention! The wording is dangerous
because even when you say it is not an invention under Indian law
you agree that it is an "invention", in invention which is not granted
the right to get patented.

Further it is better to say that these are not inventions and
non-patentable, because there might be "other acts" under which it
could be patentable.

a) and b)  are better under 4), because these are exeptions for other
reasons and systematically break the Article.

"an invention which is frivolous or which claims anything obvious
contrary to well established natural laws;
b. an invention the primary or intended use of which would be contrary
to law or morality or injurious to public health;"

It is difficult for me to understand what inpact this actually has so
I assume it is the same you find in all patent laws.


6) "First to Invent" rule, no first to file!

"p. "person" includes the Government;"  --- ???

Person is not defined, but I believe that only natural persons may apply here.


Intresting: 
- no language regulation so far I can see
- no specification what can be done with a patent, 
no real enforcement regulation. You get a patent ... and what then?
- how long is it granted?
- regulation of revocation is weak.
- general clause 3 a/b can be used in pratice to withdraw a patent
- are there patents "by the Government"?


Very intresting for us: The 2002 industry definition

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

However it remains somehow recursive. What is industry? Here the
economic sector theory could apply. Good.

Ah, 2002 3a) was touched.

Well, from my perspective the law looks more or less chaotic. It is
not that bad. It seemed to be subject of serious struggle.
The systematics is somehow broken. It has to be reorganised.

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---
Anivar Aravind