Unnatural offences - S. 377

•Whoever voluntarily has carnal intercourse 

–against the order of nature 

–with any man, woman or animal, 

–shall be punished with imprisonment for life, 

–or with imprisonment of either description for a term which may extend to ten years, and 

–shall also be liable to fine

•Section intended to punish 

–Sodomy: Anal intercourse

–Bestiality: sex between a person and an animal 

• Naz Foundation v. Government of NCT of Delhi, 2010 Cr LJ 94 (Del.) 

–Naz Foundation filed a petition in 2001 seeking legalisation of homosexual intercourse between consenting adults 

–First such petition filed by AIDS Bhedbhav Virodhi Andolan in 1994 

–In 2003, Delhi HC refused to consider the petition stating that the petitioners had no locus standi 

–On appeal, Supreme Court disagreed with the HC and stated that Naz had standing to file PIL 

–In 2006, National AIDS Control Organisation (NACO) filed an affidavit stating that enforcing s. 377 violated LGBT rights 

–Other social activists joined this petition 

 

• Judgment delivered by the HC on July 2, 2009 

–Rights to dignity and privacy are included in Right to Life and Liberty under A. 21 

–Therefore criminalizing consensual gay sex violated these rights 

–It also violates art. 14 (right to equality) because it creates unreasonable classification and targets homosexuals as a class

–The word ‘sex’ does not only include biological sex but also sexual orientation and thus such discrimination violates art. 15 

–S. 377 is unconstitutional insofar as it criminalises consensual sexual acts of adults in private 

 

• Supreme Court on 11 December, 2013 

– Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, 2014 (1) SCC 1 

–“we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable” 

•Notwithstanding this verdict, 

–the competent legislature shall be free 

–to consider the desirability and propriety of deleting Section 377 IPC from the statute book or 

–amend the same as per the suggestion made by the Attorney General.

Rape related offences (Ss. 376-A to E)

Punishment for causing death or resulting in persistent vegetative state of victim - S. 376-A

•Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in 

–the course of such commission inflicts an injury which causes the death of the woman or 

–causes the woman to be in a persistent vegetative state, 

–shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, 

–but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or 

–with death. 

Sexual intercourse by husband upon his wife during separation - S. 376-B

•Whoever has sexual intercourse with his own wife, 

–who is living separately, whether under a decree of separation or otherwise, 

–without her consent, shall be punished with imprisonment of either description for a term 

–which shall not be less than two years 

–but which may extend to seven years, and shall also be liable to fine. 

Sexual intercourse by a person in authority - S. 376-C

•Whoever, being 

–(a) in a position of authority or in a fiduciary relationship; or 

–(b) a public servant; or 

–(c) superintendent or manager of a jail, remand home or other place of custody 

–or a women's or children's institution; or 

–d) on the management of a hospital or being on the staff of a hospital, 

• abuses such position or fiduciary relationship to 

–induce or seduce any woman 

–either in his custody or under his charge or 

–present in the premises 

–to have sexual intercourse with him, 

–such sexual intercourse not amounting to the offence of rape, 

• shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, 

•but which may extend to ten years, and shall also be liable to fine 

Gang rape - S. 376-D

•Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, 

•each of those persons shall be deemed to have committed the offence of rape and 

•shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, 

•but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine 

• S. 34. Acts done by several persons in furtherance of common intention.— 

–When a criminal act is done by several persons in furtherance of the common intention of all, 

–each of such persons is liable for that act in the same manner as if it were done by him alone 

•Joint liability because of the common intention 

•Prosecution not required to prove actual commission of rape by each and every accused forming group – Pardeep Kumar v. Union Administration, Chandigarh (2006) 10 SCC 608 

•Meeting of minds, criminal sharing necessary although all of them may not have committed rape 

Punishment for repeat offenders - S. 376-E

•Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376D and 

–is subsequently convicted of an offence punishable under any of the said sections 

–shall be punished with imprisonment for life 

–which shall mean imprisonment for the remainder of that person's natural life, or 

–with death.

Rape (Contd.)

• Will and Consent

–These expressions may overlap sometimes 

–Two separate clauses to make it as comprehensive as possible 

• Third and Fourth clauses

– Bhupinder Singh v. UT of Chandigarh, (2008) 8 SCC 531: Marriage of accused with the complainant void- already married- hence guilty of rape 

• Attorney General’s Reference, Re, sub. nom, R. v. Y. (Martin), (2002) 

–Husband-wife living separately- wife invited him home for reconciliation- but talks failed- he raped her on knife point on two occasions brutally- held guilty of rape 

• R. v. Elbekkay, (1995) Crim LR 163 

–Girl permitted intercourse believing that he was her boyfriend, in fact he was a different person- so no consent- guilty of rape 

• Fifth clause 

–unsoundness of mind or intoxication or 

–Administration of any stupefying or unwholesome substance (drugs) 

– R. v. Fiddler (Mark Anthony), (2001) 

•Accused and Victim, both 12, alone in an upstairs bedroom- both drunk- accused asked whether you want to lose virginity-she said yes- sexual intercourse took place-Held guilty of rape- Boy knew she would not have agreed if sober 

• Kanhimon v. State of Kerala, 1988 

–Woman suffering from Somnambulism (sleep-walking)-walked out of her home at 2 am and reached at a particular spot- 5 accused persons took her to a lodge and gang-raped her- Guilty 

• Sixth clause 

–Under 18 years 

–Raised from 16 by 2013 amendment 

–Birth register showed the age as 14, medical opinion said, between 14 and 16 – birth register should be preferred 

• Seventh clause 

–When she is unable to communicate consent 

• Defence that girl was of easy virtue 

–Even such a woman has a right to refuse to have sex because she is not a vulnerable object for all 

–Even if she has sex regularly, doesn’t mean she has a ‘loose moral character’ 

–Not a reason to be raped 

–She also has a right to protect her dignity just like any other woman 

– Narendar Kumar v. State (NCT of Delhi), 2012 

• Juvenile committing rape 

–Accused between 16-18 then can be tried as an adult for heinous offences 

–But sentencing has to be done by Juvenile Justice Board 

• Absence of injury 

–Injury marks on a woman’s body not compulsory to prove rape 

– Santosh Kumar v. State of MP, 2006 

Woman raped by two persons while she was asleep in a bus- Injury on front part of her body but not on private parts-doesn’t matter- still rape 

– Master Mirdha v. State of Bihar, (2006) 

•Absence of injury on private parts and breasts of woman- does not mean that she had given her consent 

• Penetration 

–Not necessary that there should be complete penetration 

–Even little penetration sufficient to constitute rape 

• Corroboration of testimony 

–Not compulsory in all cases 

–She is not an accomplice but a victim 

–Not necessary that every part of her evidence should be confirmed in every detail by independent evidence 

– State of Mah v. C. K. Jain, (1990) 

Police Officer wrongfully arrested a person- took his wife to a lodge and raped her twice- next day husband out on bail went to the lodge and found her crying-she told the story- in the Court there was corroborative evidence to prove her- but court still believed her statements based on circumstances 

• Charge not proved 

–House owner accused of rape by maid servant 

–After the incident she roamed here and there but did not report the incident 

–On reaching home did not tell anything to her husband 

–Made food for family went to sleep 

–Next day, had a bath, worked in four flats and went to her sister and then filed her report 

– Vimal Suresh Kamble v. Chalu Vera Pinabe, (2003) 

–False case to extort money 

Rape

Justice Verma Committee

•December 16, 2012 – Nirbhaya case

•December 23: Three-member committee headed by Justice J.S. Verma, Ex-SC Judge and including these members

–Justice Leila Seth, former judge of the High Court

–Gopal Subramanium, former Solicitor General of India

•Submitted its report on Jan 23, 2013 

•Criminal Law (Amendment) Act, 2013 

–Bill passed in Lok Sabha on March 19, 2013 

–Rajya Sabha – March 21 

–President’s assent – April 2, 2013 

–Came into force – April 3, 2013 

• Recommendations on the following topics 

–Rape 

–sexual harassment 

–Trafficking 

–child sexual abuse 

–medical examination of victims 

–Police 

–electoral and 

–educational reforms 

• Rape: 

–rape and sexual assault are not merely crimes of passion but an expression of power (and dominance) 

–Any non-consensual penetration of a sexual nature should be included 

–exception to marital rape should be removed 

•the relationship between the victim and the accused should not be relevant 

–Death sentence was not recommended 

• S. 376A amended:

–Punishment for causing death or resulting in persistent vegetative state of victim

–Death sentence introduced

Rape - S. 375

•A man is said to commit “rape” if he 

–Penetrates his penis 

–Inserts any object or any other part of the body 

–Manipulates any part of her body so as to cause penetration or 

–Applies his mouth to 

vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person, 

Under the following seven descriptions 

 

• First.—Against her will 

• Secondly.—Without her consent 

• Thirdly.—With her consent, 

–when her consent has been obtained 

–by putting her or any person in whom she is interested, 

–in fear of death or of hurt 

• Fourthly.—With her consent, 

–when the man knows that he is not her husband 

–and that her consent is given because she believes that 

–he is another man to whom she is or believes herself to be lawfully married. 

• Fifthly.—With her consent when, 

–at the time of giving such consent, 

–by reason of unsoundness of mind or 

–intoxication or 

–the administration by him personally or through another of any stupefying or unwholesome substance, 

–she is unable to understand the nature and consequences of that to which she gives consent 

• Sixthly.—With or without her consent, when she is under eighteen years of age 

• Seventhly.—When she is unable to communicate consent 

•Exception 

–A medical procedure or intervention shall not constitute rape 

–Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape 

Punishment for rape  - S. 376

• S. 376 (1) : Whoever commits rape, except in cases mentioned in (2), shall be punished with 

–Rigorous imprisonment not less than 7 years but 

–May extend to imprisonment for life 

–and fine.

• S. 376(2): (a) police officer committing rape 

–Within limits of his police station 

–In the premises of any station house 

–On a woman in his or his subordinate officer’s custody 

• (b) public servant committing rape 

–On a woman in his or his subordinate public servant’s custody 

• (c) Member of armed forces committing rape 

–In an area where he is deployed by government 

• (d) Staff of jail, remand home etc. 

–Any person in the management of staff 

–Of any jail, remand home, any women’s or children’s institution 

–Established by law 

–Commits rape on any inmate 

• (e) Staff of a hospital 

–Management, staff of a hospital committing rape on a woman in that hospital 

• (f) Relative, guardian, teacher 

–Or a person in a position of trust or authority towards the woman 

• (g) commits rape during communal or sectarian violence 

• (h) woman knowing her to be pregnant 

• (i) woman when she is under sixteen years of age 

• (j) woman incapable of giving consent 

• (k) being in a position of control or dominance over a woman, 

• (l) woman suffering from mental or physical disability 

• (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman 

• (n) commits rape repeatedly on the same woman 

 

shall be punished with rigorous imprisonment not less than 10 years but 

–May extend to life, which shall be mean remainder of natural life 

–And fine 

Abduction - S. 362

•Whoever by force compels

–or by any deceitful means induces

–any person to go from any place

–is said to abduct that person 

Ingredients

1.Forceful compulsion or inducement by deceitful means 

2.Object of such compulsion or inducement must be the going of a person from any place 

1. Forceful compulsion or inducement by deceitful means

•‘Deceitful means’ includes a misleading statement, bad intention 

•‘Inducement’ does not necessarily involve any force or compulsion 

 

2. Object of such compulsion or inducement must be the going of a person from any place

•Any place where the person does not wish to go, does not intend to go 

Difference between Kidnapping and Abduction

Kidnapping 

1. Girl under 18, Boy under 16, a person of unsound mind

2. Must be out of the lawful guardianship

3. Simply taking away is sufficient; means may be innocent

4. Consent of the person immaterial

5. Intent is totally irrelevant

Abduction 

1. Person of any age

2. No such thing

3. Force, compulsion or deceitful means is necessary

4. If free and voluntary consent is present, then abduction may be approved/accepted later

5. Intent is very important 

• Chunda Murmu v. State of West Bengal (2012) 5 SCC 753, Accused brought back his wife to their matrimonial home from another person with whom she was residing after leaving her husband – No abduction 

• Vinod Chaturvedi, AIR 1984 SC 911, Deceased had a dispute with X, Y came to him and persuaded him to go with him to settle dispute with X, Deceased left voluntarily - Whether abduction?

Kidnapping (Contd.)

Punishment for kidnapping S. 363

•Whoever kidnaps any person from

–India or from lawful guardianship, 

–shall be punished with

–imprisonment of either description 

–for a term which may extend to

–seven years, and shall also be liable to fine 

• S. 363A: Kidnapping or maiming a minor for purposes of begging 

–Kidnap : Ten years imprisonment 

–Maim: Imprisonment for life 

• S. 364: Kidnapping or abducting in order to murder 

–Imprisonment for life or up to ten years and fine 

• S. 364A: Kidnapping for ransom, etc 

–Death or imprisonment for life and fine 

• S. 366: Kidnapping, abducting or inducing woman to compel her marriage, etc. 

–Ten years imprisonment and fine 

•Ingredients 

–Kidnapping or Abducting any woman 

–Such kidnapping/abducting must be 

With intent that she may be compelled to marry any person against her will or 

In order that she may be forced to have illicit intercourse 

• ‘Kidnaps or abducts any woman’ 

–Both the offences are covered 

–Above 18, then abduction 

–Below 18, Kidnapping as well as abduction 

–The ingredients of those sections must be proved first 

 

•‘With an intent that she may be compelled to marry or have illicit intercourse’ 

–Offence is complete the moment intent is established 

–Immaterial whether the accused succeeded or not 

• Pyare Lal v. State of UP, AIR 1987 SC 852

–Accused handed over the girl to another for the purpose of marriage

–That person raped and murdered her

–Those persons were acquitted for lack of evidence

–However accused was convicted under s. 366

• Satish Kumar v. State of Rajasthan, 2001 Cr LJ 4860 (Raj.)

–Victim and accused knew each other- She was sitting in the van behind the accused while being taken away – no resistance – does it amount to consent? 

•Tribal custom of forced marriage 

–Accused and prosecutrix belonged to Bheel (Bhil) community 

–Custom that girl Is purchased from her father 

–Accused bought her from her father but father later refused to permit accused to take her 

–Accused took her forcefully 

–Can the accused be held not guilty because of the custom? 

• S. 365. Kidnapping or abducting with intent secretly and wrongfully to confine person. 

–Whoever kidnaps or abducts any person 

–with intent to cause that person to be secretly and wrongfully confined 

–shall be punished with imprisonment of either description for a term 

–which may extend to seven years, and shall also be liable to fine 

Kidnapping from lawful guardianship: s. 361

•Whoever takes or entices any minor 

–Under sixteen years of age if a male, or

–Under eighteen years of age if a female, 

–or any person of unsound mind, 

–out of the keeping of the lawful guardian of such minor or person of unsound mind, 

–without the consent of such guardian, 

Is said to kidnap such minor or person from lawful guardianship. 

•‘lawful guardian’ includes person lawfully entrusted with care or custody of the minor/person (Explanation)

 

•Does not apply to a person, who in good faith,

–Believes himself to be a father of an illegitimate child

–To be entitled to the lawful custody of such child

Unless such act is committed for an immoral or unlawful purpose (Exception) 

Ingredients of S. 361

1.Taking or enticing away a minor or a person of unsound mind

2.Such minor must be under 16 for a male, under 18 for a female

3.Taking or enticing must be out of the keeping of the lawful guardian

4.And without the consent of the guardian 

1. Takes or entices any minor...

•Section is intended to protect 

–Minor children from being seduced for improper purposes and also 

–to protect the rights and privileges of guardians having the lawful charge or custody of their wards 

•Minor voluntarily goes ‘out of the keeping’ of her guardian – S. Varadarajan v. State of Madras, AIR 1965 SC 942 

–Accused had no role 

–If he merely allows her to accompany him, then he has committed no offence 

–Proof must of accused having done something which led to the girl going out of the keeping 

•Rights of minor are not contradictory to the rights of a guardian

–They both go together 

•Taking need not by force 

–Soliciting or persuading enough 

E.g. Promise of a marriage 

•Minor’s consent immaterial 

•‘Taking’ is complete as soon as minor is actually taken out of the custody of the guardian 

•‘Enticing’ - Dictionary: attract or tempt by offering pleasure or advantage 

2. Girl under 18, Boy under 16

•Accused did not know that girl was minor 

•From appearance he thought she was major 

•Bona fide and reasonable grounds to believe that she was major 

•Explanation: ‘Lawful Guardian’ 

–Any person lawfully entrusted with the care or custody of the minor 

–Even though the actual possession may be temporarily with a friend or any other person 

3. Out of the keeping of lawful guardian

•Keeping does not mean apprehension or detention but maintenance, protection and control 

•Not necessary that minor must be in a physical possession of the guardian; continuous control is not needed 

•Either minor is taken away or minor voluntarily leaves the guardian, then no longer in keeping 

4. Without the consent of the guardian

•Consent of minor immaterial 

•Man by false and fraudulent representations induces the parents of the girl to take her away, still kidnapping 

•Consent by guardian after the commission of the offence 

•Deep Chand v. State, 2000 Cr LJ 463 (Del): Two girls of 17-gone voluntarily-girls themselves persuaded the accused to take them away for an outing- whether offence?? 

• S. 359 – Kidnapping: Kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship. 

 

• S. 360 - Kidnapping from India: Whoever conveys any person beyond 

–the limits of India without the consent of that person, 

–or of some person legally authorized to consent on behalf of that person, is 

•said to kidnap that person from India.

WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION

General principles applicable to working of patented inventions – S. 83

•patents are granted to encourage inventions and 

–to secure that the inventions are worked in India on a commercial scale and 

–to the fullest extent that is reasonably practicable without undue delay 

•that they are not granted merely 

–to enable patentees to enjoy a monopoly for the importation of the patented article 

•that the protection and enforcement of patent rights 

–contribute to the promotion of technological innovation and 

–to the transfer and dissemination of technology, 

–to the mutual advantage of producers and users of technological knowledge and 

–in a manner conducive to social and economic welfare, and 

–to a balance of rights and obligations

•that patents granted do not impede protection of public health and nutrition and 

–should act as instrument to promote public interest 

–specially in sectors of vital importance for socio-economic and technological development of India 

•that patents granted do not in any way prohibit Central Government 

–in taking measures to protect public health

•that the patent right is not abused by the patentee and 

–the patentee does not resort to practices 

–which unreasonably restrain trade or 

–adversely affect the international transfer of technology 

•that patents are granted to make the benefit of the patented invention 

–available at reasonably affordable prices to the public

Compulsory Licenses – S. 84

•Natco Pharma v. Bayer Corp.

 

–Granted to Natco Pharma for the production of generic version of Bayer Coporation’s ‘Nexavar’ - Sorafenib tosylate (March 9, 2012) 

–Used to treat kidney and lever cancer 

–Controller – Intellectual Property Appellate Board (IPAB) – Bom. High Court – SC (dismissed Special Leave Petition) 

•Bayer launched the drug in 2006 

–Patent granted in 2008 

–Did not produce the drug in India 

–Details of import 

•2008 – no bottles 

•2009 – approx. 200 bottles 

•2010 – no bottles 

–20,000 liver cancer patients and 9000 kidney cancer patients; so need for about 23,000 bottles per month to satisfy the demand 

–Price per month – Rs. 2,80,248/- 

•Price by Natco – Rs. 8,800/- per month

–Always in short supply even in metro cities; not available through out India 

–This was significant as it is a “life saving drug” and not a “luxury item” 

 

•Bayer argued 

–“the cost of drugs supports the pipeline of future drug development ” 

–its investment in new drug development amounted to 8 billion Euros from 2007 to date 

–and that it takes more than 2 million Euros to bring a new drug to market 

•Controller noted 

–Bayer’s worldwide sales increased from $165M in 2006 to $934M in 2010 

–"These figures clearly demonstrate the neglectful conduct of the Patentee as far as India is concerned“ 

–Common man (lowest - paid government worker) will have to pay his 3.5 years’ wages to afford one month’s supply of drug 

–Nexavar extends life for kidney cancer patient by only 4-6 years and liver cancer patient by 6-8 months 

–Bayer did not fulfill “reasonable requirements of the public” 

–It had not "taken adequate steps to . . . make full use of the invention.“ 

–The price was not “reasonably affordable to the public” 

–It did not “work the invention in the territory of India” 

–Controller referred to Article 27(1) of TRIPS and Article 5(1)(A) of the Paris Convention 

•the Controller established the terms of the compulsory license, wherein: 

i. the right to make and sell sorafenib is limited to applicant (no sublicensing) 

ii. the compulsorily licensed drug product can be sold only for treatment of liver and renal cancer; 

iii. the royalty shall be paid at a rate of 6% 

iv. the price is set at Rs.74/- per tablet, which equals Rs. 8,800/- per month; 

v. the applicant commits to provide the drug for free to at least 600 "needy and deserving" patients per year 

vi. the compulsory license is not assignable and non-exclusive, with no right to import the drug 

vii. No right for the licensee to "represent publicly or privately" that its product is the same as Bayer's Nexavar® 

viii. Bayer has no liability for Natco's drug product, which must be physically distinct from Bayer's dosage form 

The license was granted on March 9, 2012. 

Grant of Patent and Rights conferred thereby – Chapter VIII

•Grant of patents (s. 43)

–Where the application has not been refused for any reason or

–It is not in contravention of any of the provisions of the Act,

Patent shall be granted as expeditiously as possible with the seal of office and date to be entered in the register

•Grant and sealing of patent, or the decision by the Controller in case of opposition

–does not guarantee the validity of the patent

–can still be challenged before the Court on various grounds in revocation or infringement proceedings

•This position reiterated in J Mitra and co Pvt Ltd v. Kesar Medicaments, (2008) 

–relying on Bishwanath Prasad Radhey Shyam and Standipack Pvt Ltd cases 

•Date of Patent: Date of filing the application 

•Grant of patents to be subject to certain conditions (s. 47) 

–the invention may be imported or made by the government for its own use 

–for experiment or research purposes including the imparting of instructions to pupils 

–in case of medicine or drug, may be used by the govt. in its dispensary, hospital or medical institution 

•Rights of patentee (s. 48) 

–Exclusive right to prevent third parties who do not have his consent from 

•making, 

•using, 

•offering for sale, 

•selling or importing for those purposes 

•in case of process patent, even the product directly obtained by that process

•Patent rights not infringed when used on foreign vessels etc., temporarily or accidentally in India (s. 49) 

–Known as Doctrine of Temporary Presence 

–A foreign vessel, aircraft or a land vehicle 

–owned by a foreign resident, comes to India 

–temporarily or accidentally, then 

–invention shall not be deemed to be infringed if used 

–on board the vessel and for its actual needs or 

–in the construction or working of such vehicle 

• Term of Patent – 20 years 

•Renewal fees – Have to be paid every two years, failing which the patent shall cease and will fall into public domain 

Patents of Addition Chap. IX- Ss. 54-56

•Granted for those improvements or modifications in the main invention 

–Which the patentee might have made during the course of working of his patent but 

–Which might not possess sufficient inventiveness to qualify for an independent patent 

–Granted only for unexpired term of the main patent

Secrecy of Certain Inventions: Chapter VII

•Inventions relevant for defence purposes (s. 35)
–Controller believes that the invention is such, he may prohibit or restrict the publication/ communication of information
–Controller shall inform the Cent. Govt. and the govt. after considering the application,
     •If the publication is not prejudicial to the defence of India,
     •Ask the controller to revoke the directions

–If the controller hasn’t given directions under sub-section 1,
     •and cent. govt. is of the opinion that invention is relevant for defence purposes
     •It can suo moto notify the controller to that effect and
     •Then sub section 1 shall apply and the controller shall give such directions

•Secrecy directions to be periodically reviewed (s. 36)
–By the cent. govt. every six months or on a reasonable request by the applicant

•Consequences of Secrecy Directions
–So long as such directions are in force,
–the controller shall not pass an order refusing to accept the application
–no appeal shall lie from the order of the Controller
However,
–the application may proceed to the stage of grant of patent but
–the application and specification are not to be published and
–no patent is to be granted

•In respect of such complete specifications
–any use of such inventions made by the Government
–provisions of ss. 100, 101 and 103 shall apply as if patent had been granted
–if it appears to the cent. govt. that applicant has suffered any hardship due to such secrecy directions, it may pay him reasonable money
–by way of solatium (compensation)


      •S. 100 - (Power of Central Government to use inventions for purposes of Government)
      •S. 101 (Rights of third parties in respect of use of invention for purposes of Government)
      •S. 103 (Reference to High Court of disputes as to use for purposes of Government)


•Revocation of secrecy directions and extension of time (s. 38)
–When such directions are revoked,
–the Controller may grant any extension for doing anything under the Act in respect of the application

•Residents not to apply for patents outside India without prior permission (s. 39)
–Except under written permission from Controller
–a resident Indian cannot make an application outside India for defence related inventions unless
•he has first applied in India at least six weeks before and
•either no secrecy directions have been passed or if passed, they have been revoked

How to obtain Patent (Contd.)

•Publication of Application

–Shall be published after 18 months except in below cases

•Secrecy direction is imposed under s. 35

•Has been abandoned under s. 9(1)

•Has been withdrawn 3 months prior to the 18-month-period

•Request for Examination 

–Request by the applicant/any interested party

•Request for Examination 

–Controller refers it to examiner for making a report including below things 

•Whether application, specification etc. comply with the Act/rules 

•Whether there is any lawful ground of objection 

•Result of investigations under s. 13 (prior-art search) 

•Examination Report to be sent to applicant 

•If invention anticipated by prior claim, then opportunity to amend the application 

–Amended application to be examined just like any original specification

Opposition to Patent (s. 25) 

•Where application has been published but a patent has not been granted, any person may file opposition on the following grounds 

–Applicant wrongfully obtained the invention from him 

•Burden of proof is on the opponent 

•However if the CS had been communicated to the applicant by the opponent (who invented the invention first), onus shifts on the applicant 

•Invention claimed in CS has been published before the priority date in any specification in India 

–Press Metal Corp Ltd v. Noshir Sorabji Pochkhanwalla, 1983 

–Published in two books 

–Gave the invention to others for testing 

–Hence it not novel 

•Invention claimed in CS published in any CS after priority date but being a claim of which priority date is earlier than applicant 

•Invention publicly known or publicly used in India before the priority date 

•Invention is obvious and clearly does not involve any inventive step 

•Subject of the invention is not an ‘invention’ or is not patentable under the Act 

•CS does not sufficiently and clearly describe the invention or method by which it is to be performed 

•applicant has failed to disclose to the Controller the information required by section 8 or provided false info 

–S. 8: Information and undertaking regarding foreign applications 

•In case of convention application, application not made within 12 months 

–Paris Convention route (177 countries) 

–Patent Cooperation Treaty route (152 countries) 

•Wrongly/does not mention the source or geographical origin of biological material used for the invention 

•Invention claimed is anticipated by the local community because of their knowledge 

•These are the only grounds.

Can’t be opposed on any other grounds 

•Available to any person 

–Before the grant or 

–After the grant but before the completion of one year

Anticipation: Chapter VI

•To expect/predict; be earlier than some one else 

•Anticipation by 

–S. 29: Previous Publication 

–S. 30:Previous Communication to the Government 

–S. 31: Public Display etc. 

–S. 32: Public Working 

–S. 33: Use and Publication after PS

•S. 29 – Anticipation by previous publication 

•Invention shall not be deemed to have been anticipated 

–by reason only that it was published before the priority date 

–If the patentee proves: 

a)Matter published was obtained from him and published without his consent and 

b)He filed an application as soon as he came to know of such publication

–Provided this sub-section not to apply if 

•The invention has been worked commercially by the patentee in India (except for purpose of reasonable trial) 

• Any other application in respect of the same invention 

–made in contravention of the rights of inventor 

–Or Used or published without his consent by that other applicant 

•Lallubhai C Jariwala v. Chimanlal & Co. (1936) 

–Once public get to know of the invention before application, then subsequent patent granted not valid 

•Not necessary that people should actually read it 

–Enough if the publication was accessible and open to public 

–E.g. Library of Govt Patent Office, any public library etc. 

•Such prior publication must be sufficient and complete 

•S. 30: Previous Communication to the Government not deemed as anticipation 

–To investigate the invention or its merits 

–Or anything done in consequence of such communication for the purpose of such investigation 

•S. 31 – Public Display not deemed as anticipation 

•Display at an industrial or other exhibition or 

–Use of invention at such place for purposes of display 

–With the consent of the inventor 

•Publication of any description of the invention in consequence of the above 

•Once it is displayed, any person uses it without the consent of the inventor

•Presentation of a paper by the inventor before any learned society 

•Within 12 months from such publication, an application must have been filed. 

•S. 32: Public Working (Reasonable Trial) 

–Within one year before the priority date 

–Publicly worked in India by the applicant/ patentee/ any other person with his consent 

–It was reasonably necessary to conduct the trial considering the nature of the invention 

•S. 33: Use and Publication after PS 

–The Controller shall not refuse to grant the patent 

–And the patent shall not be revoked or invalidated by reason only of this ground 

–Any use, publication in India or elsewhere after PS is filed

How to Obtain a Patent

Application for a Patent

•Section 6: Following persons either alone or jointly

–True and First inventor

–Assignee of true and first inventor

–Legal representatives of the above

•True and First Inventor 

–Person who made the invention first 

–In case of two different inventors, one who applies first 

 

•S. 2(1)(y) : "true and first inventor" does not include 

–either the first importer of an invention into India 

–or a person to whom an invention is first communicated from outside India 

•A person who contributed one of the two main ideas – co-inventor – Norris’ Patent (1988) RPC 159

•Whether a financing partner could be deemed as an inventor? – VB Mohammed Ibrahim v. Alfred Schafranek, AIR 1960 Mys 173

•Employer and Employee relationship

–Invention in the course of employment 

•Assignee 

–S. 2(1)(ab): "assignee" includes an assignee of the assignee and the legal representative of a deceased assignee 

–A person to whom the invention has been assigned by the T & F inventor 

–May be assigned to a partnership firm or a company 

 

– •Legal Representative of 

–T & F inventor 

–Assignee of the above 

–Assignee of the assignee 

•S. 2(1)(k): legal representative" means a person who in law represents the estate of a deceased person 

•S. 7: Form of Application 

–Name, nationality, address of the inventor and the applicant 

–Title of the invention 

–Priority particulars filed in convention country 

–Filing details of PCT national phase 

–Patent of addition details if any 

–Attachments: 

•Provisional specification, 

•Complete specification 

•Drawings etc. 

•Provisional Specification and Complete Specification 

Provisional needs to contain only 

Description of the general nature of the invention 

Field of application 

Anticipated result 

No need to describe it completely and fully 

–Object is to establish a priority date 

–File complete specification within 12 months, else deemed to be abandoned 

•Between provisional and complete, inventor may 

–Conduct further research and 

–improve on the invention 

 

•May file two or more provisional specifications but only one complete specification 

–12 months calculated from the first PS 

•Complete may be treated as provisional on the request of applicant 

•Once complete filed, provisional is cancelled 

–Date of CS is changed to the date of PS 

–Standipack v. Oswal 

PS dated April 11, 1989 

CS filed on October 11, 1990 

Controller changed it to July 11 1989 

Held to be prima facie in violation of s. 9 

Contents of Specification- S. 10

•Must contain description of the invention 

–Including all relevant diagrams or drawings 

•Must contain claims 

–The most important part of an application and for the invention is ‘claims’ 

–Has to state the scope of monopoly rights

•Description 

–Disclose the invention sufficiently 

–Mention the title sufficiently indicating the subject matter 

•Claims 

–Define clearly and with precision the monopoly claimed 

–Anything which is not claimed is not protected 

•Supply a model or a sample illustrating the invention, if asked by the Controller 

Essential Requirements of a Complete Specification

•fully and particularly describe the invention and 

–its operation or use and 

–the method by which it is to be performed 

best method of performing the invention known to him 

Claims defining the scope of the invention 

Provide an abstract 

 

•Claims 

–Function is to define clearly and with precision the monopoly claimed 

–What is not claimed is disclaimed ( i.e. It won’t be protected) 

–Others will come to know the boundaries of the protection within which they will be trespassers 

 

•Abstract

–Concise summary of the invention

–Technical field to which the invention belongs

–Technical problem to which it relates and solution to that problem

–Principal use or uses of the invention

–Should not be more than 150 words 

Inventions Not Patentable

S. 3: What are not Inventions

•Frivolous or contrary to natural laws

–A gun with a torch light attached to it

•Contrary to public order or morality or

– causing serious prejudice to 

–Human, animal or plant life or health or to the environment

–E.g. Instrument for pick-pocketers, thieves, etc

–Apparatus to inject any drug into human body for faster absorption

–Cloning of human beings, use of human embryos for industrial or commercial purposes, processes of modifying genetic identity of animals likely to cause unnecessary harm 

•Mere discovery of scientific principle or 

–Formulation or discovery of any living thing or non-living thing occurring in nature 

•3(d) 

–Mere discovery of a new form of known substance 

•Not resulting in enhancement of known efficacy of that substance 

–Mere discovery of any new property or new use for a known substance 

–Mere use of a known process, machine or apparatus unless such process results in a new product  

•Substance obtained by mere admixture 

–Resulting only in the aggregation of the properties of the components 

•Mere arrangement or re-arrangement or duplication 

–of known devices 

–each functioning independently of one another in a known way 

–M/s Standipack Pvt Ltd v. M/s Oswal Trading Co Ltd AIR 2000 Del 23, pouch for storage and dispensing of a liquid such as lubricating oil; thickness of the films that have been used in pouches

•method of agriculture or horticulture 

•process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings 

–Or animals to render them free of disease 

–or to increase their economic value or 

–that of their products 

–E.g. more efficient or less harmful dosages in known treatment; 

–Administration of bacterium to get immunity from a disease 

–Employment of known medical equipment for new treatments 

•plants and animals other than micro-organisms but including 

–Seeds, varieties and species and 

–Essentially biological processes 

–for production or propagation of plants and animals 

–Bio-technological inventions: Made mandatory by TRIPs 

–Case: Diamond v. Chakrabarty, 447 US 303 (1980) 

•Genetically engineered bacterium capable of breaking down multiple components of crude oil

•mathematical or business method 

–or a computer programme per se or 

–algorithms 

•literary, dramatic, musical or artistic work or 

–Any aesthetic creation whatsoever 

–including cinematographic works and television productions 

•method of performing mental act or method of playing game 

 

•Presentation of information 

•topography of integrated circuits 

–The Semiconductor Integrated Circuits Layout-Design Act, 2000 

•traditional knowledge or 

–aggregation or duplication of known properties 

–of traditionally known component 

–E.g. Use of turmeric to heal wounds

•Dhanpat Seth & Others v Nil Kamal Plastic Crates Ltd, (2008) 36 PTC 123 (HP) (DB) 

–Traditional Kilta used in Himachal Pradesh

•S. 4: Inventions related to atomic energy not patentable 

–Falling within s. 20(1) of the Atomic Energy Act, 1962 

–National security reasons 

•Concurrent Patents 

–Can two persons who made an invention by their independent efforts, get independent patents for the same invention?

- No. The person who files first will get the patent

Patent: Definition and Meaning

•‘Patent’ [s. 2(1)(m)] means a patent for any invention granted under this Act

•Invention [s. 2(1)(j)] means 

–a new product or process 

–involving an inventive step 

–and capable of industrial application 

•Inventive step [s. 2(1)(ja)] means a feature of an invention 

–That involves technical advance 

–as compared to the existing knowledge or 

–Having economic significance 

–Or both and 

–That makes the invention not obvious to a person skilled in the art 

•Capable of industrial application [s. 2(1)(ac)] in relation to an invention 

–means that the invention is capable of being made or used in an industry 

 

•Patentee [s. 2(1)(p)] means the person for the time being entered on the register as the grantee or proprietor of the patent 

Invention

•Not necessary that the product developed should be totally new product 

•Even if product substantially improved by an inventive step, will be an invention 

•Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511 

–Whether an alleged invention involved novelty and an ‘inventive step’ was a mixed question of law and fact and depends largely on the circumstances of the case 

 

–‘manner of manufacture’ if publicly known, used and practiced in the country, then there’s no novelty 

 

•‘new invention’ [s. 2(1)(l)]means 

–Any invention or technology 

–Which has not been anticipated 

–By publication in any document 

–Or used in the country or elsewhere in the world 

–Before the date of filing of patent application with complete specification i.e. 

–The subject matter has not fallen in public domain 

–Or that it does not form part of the state of the art 

•New or novel 

–Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511 

–Househill Coal and Iron Company v Neilson, (1843) 1 Web PC 673 

–British Vacuum Cleaner Co Ltd v. Suction Cleaners Ltd., (1904) 21 RPC 303 

•Inventive Step 

–Technical advance as compared to existing knowledge or having economic significance or both  

–Bajaj Auto Ltd v. TVS Motor Co Ltd, (2008) 36 PTC 417 (Mad) 

–Dhanpat Seth & Others v Nil Kamal Plastic Crates Ltd, (2008) 36 PTC 123 (HP) (DB) 

•New product is just an imitation of traditional Kilta 

•Mere fact that device is made of polymeric material instead of bamboo not an inventive step

•Prior public knowledge 

–Could be by word of mouth or 

–By publication through books or other media 

 

•Non-obviousness 

–If there is no inventive step, it implies that it is obvious- Bilcare Ltd v. Amartara Pvt Ltd (2007) 34 PTC 419 (Del) 

•Product Patent and Process Patent 

–Before Amendment Act 2005,in respect of food, drugs and pharmaceuticals, only process patent was granted 

•Patentee 

–‘Firm’ does not have the capacity to invent 

•But still could be registered either by assignment or jointly with the inventor 

•Corporation can’t be the sole applicant claiming to be the inventor 

IPR - Historical background

•Basic features of a property

–Control over the use of the property.

–Right to take any benefit from the property

–Right to transfer or sell the property

–Right to exclude others from the property

•Proprietary interests/rights in IP same as for tangible property

•Industrial Property and Non-industrial property (Copyright)

Historical background of IPR

•Venice, 15th century, Venetian Statute of 1474 

•King Henry II of France, patent description 

•English patent system foundation for Industrial Revolution 

•16th century England – letter patent 

•Statute of Monopolies- restricted the Crown’s power 

•Paris Convention for the Protection of Industrial Property, 1883 

–International Exhibition of Inventions in Vienna, Austria, 1873 

•Stationers’ Company, England, 16th Century 

•Statute of Anne, 1710 (Copyright Act) 

•Berne Convention for the Protection of Literary and Artistic Works, 1886 

•BIRPI, Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle, 1893 

•WIPO, World Intellectual Property Organisation 1970 

•WIPO joined the UN in 1974

History of Patent Law in India

–First law in 1856 (based on 1852 British Law), 14 year protection

–Patent Monopolies, 1859

–Patents and Designs Protection Act, 1872

–Protection of Inventions Act, 1883

–Inventions and Designs Act, 1888

–Indian Patents and Designs Act, 1911 (16 years)

–The Patents Act, 1970, on recommendations of Justice N. Rajagopala Ayyangar 

•Primary objective of promoting the progress of scientific research and technology for public good 

–Granting of exclusive rights to inventors over their inventions for a limited period 

–Investors to invest in research and development so that inventors can invent 

–Inventor gains monetary benefits by commercializing his invention