INTRODUCTION
Nanotechnology is a field of research and innovation in areas of science and engineering, which covers building things generally, design, production, and application of materials, structures, devices, and systems that take place at the dimensions in the nanometre scale. The rudimental concept of making small things and providing a path to new and varied inventions, nanotechnology is expected to be taking control of future technology. The scope of the patent laws for technology in India is inhibited. In such cases, laws for nanotechnology in India are incomprehensible and have several flaws. With India being a powerhouse of science and technology, preserving the rights of the proprietor and the society becomes a fundamental issue.
This article will discuss the patent laws for nanotechnology in India, the issues on the patent for nanotechnology, nanotechnology scope, and the steps taken to improve the flaws.
NANOTECHNOLOGY IN INDIA
In India, the fields where nanotechnology has gained excellence are medical, agriculture, and science. Research and development have approved various nanotech tools for agriculture and pharmaceuticals. The government has taken the Nano science and Technology initiative. DRDO is carrying out work in the field of nanotechnology for the enhancement in the defence sector, by employing equipments such as like nano-sensors, nano-drones, nano-battlesuit, nano-satellites, and nano-systems. Like NTI, the government has formed several other departments of research for nano-tech. Various promising companies are working in this field. New startups are budding in India in the field of nano-tech. As for 2020, there are 57 startups in India working in the field of nano-tech. In the last few years, the number of patents of nano-tech has increased in the field of chemistry, biology, physics, engineering, computer science, and even electronics.
Some of the examples are arsenic decontamination of water, developed by IIT Madras and water-based self-cleaning technology for the textile industry, by IIT Delhi.
INDIAN PATENT LAW ON NANOTECHNOLOGY
In India, patent is granted on all those subject matters that are not covered under the non-patentable section of The Patents Act, 1970. Section 3 [1] includes 16 non-patentable inventions. The following sections are concerned with nanotechnology-
Section 3 (d) – the mere discovery of the new form, which does not lead to the advancement of the known substance is non-patentable; for example – mixtures of isomers, complexes, and combinations of a known substance.
Section 3 (i) – any process for the medical, surgical, curative, or other treatment of human beings to increase the economic value or that of the product is non-patentable.
Section 3 (p) – invention including traditional knowledge or aggregation or duplication of the traditionally known substance is non-patentable.
Section 4 – invention relating to atomic energy is too non-patentable.
The act does not have provisions for nanotechnology and only lists the non-patentable inventions concerning with nanotechnology.
PATENTABILITY ISSUES
NOVELTY - Novelty is the absolute criteria for a patent in India. The criteria of novelty conflicts with nanotechnology as the technology reduces the size of existing inventions in an enhanced manner. This criterion imposes two problems for the nanotechnology –
1. They are predicted by prior art and thus, are not considered as novel as they are derived from the pre-existing technologies.
2. They are rendered non-obvious as they are a mere reduction.
MULTI-DISCIPLINARY AND MULTI-INDUSTRIAL IN NATURE – Nanotechnology does not work in isolation or has one aspect; it works in multiple fields. Thus, a single invention in nanotechnology is concerned with multiple disciplines. As a result, one document will not suffice to provide for all instructions pertaining to it.
Section 3 (d) imposes a great challenge for biotechnology. The nanoparticles are the result of the combination of the particles and until they are not differentiated in character and efficacy, they will not be granted patent. Madras High Court [2] , in the case, said that section 3 (d) could seriously impede the innovations in nanotechnology.
DELAY IN NANOTECH PATENTS – Delay in granting a patent leads to the decrease of the term of the patent. Administrative work takes 4 years to grant a patent for nanotechnology because of the inefficiency of the members. Thus, the patentee is left with the enjoyment of patent for only 16 years.
PATENTING OF UPSTREAM RESEARCH – Increase in the number of individuals and universities involved in research is imposing problems for developing countries as they have to pay double for both the research and the product of the research.[3]
LACK OF SPECIALISATION - There are only 133 workers specialised in the field of biotechnology, chemistry and biochemistry. No person is specialised in nanotechnology particularly. Because of the nature of the nanotech, there is a requirement of efficient workers.[4]
This is only the tip of the iceberg. There are many problems which the nanotechnology in India faces for the patent, ranging from the problem with the identification of the nanotech patent to the limited scope of the patent for them.
STEPS TO ADOPT BY PATENT REGIME FOR NANOTECHNOLOGY
Acknowledging the challenges faced by the patent of nanotechnology, patent offices of other countries have taken preliminary steps. They have extended the scope of the terminology and have made separate classification by collecting all nano-patents into one. India has not taken such steps. It is the need of the hour for India to take this step first.
There is a lack of enough members in the patent office. And thus, there is a need to take steps towards the recruitment of more specialised people for granting a patent of nanotech. [5]
The exceptions in the patents act regarding the nano-tech need to re-addressed by the government. The exemptions should be removed.
The Patents Act should be flexible for nano-tech and a separate section is needed for granting the patents for nano-tech. Nano-tech patents should be classified into one.
Advanced legal and procedural strategies need to be incorporated.
Authentication and a combination of prior art in the form of data collection are necessary.
CONCLUSION
There are many challenges which are faced by the nanotechnology patents in India. These challenges restrict the growth of further research and are a threat to the upcoming technologies. The rights of society are strictly protected by the patents act in the field of nanotechnology. This strict protection has limited the scope of an individual’s rights. The patents act in India guarantees patents to only natural persons and not machines. Nano-technologies includes certain technologies where there is no control of the human being. Thus, granting the patent to living persons and not machines is another problem faced by the people because they are unable to prove the involvement of a human being. Inadequacies of granting patents have to be improved by the government in the field of nanotechnology, for the development of the technology. Nanotechnology inventions in India are in an initial stage. The number is expected to increase and become a significant part of technology in India. Nanotechnology is important for technological advancement and fulfilling the social requirements of the society.
REFERENCES
[1] The Patents Act, 1970, No. 39, Acts of Parliament, 1970 (India)
[2] Novartis AG v Union of India and Others, W.P No. 24754 of 2006, India
[3] Indrani Barpujari, The Patent Regime, and Nanotechnology: Issuea and Challenges, Researchgate (Apr 2010), file:///C:/Users/hp/Downloads/The_Patent_Regime_and_Nanotechnology_Issues_and_Ch.pdf accessed 24 August 2020
[4] Ibid
[5] Editor, Nanotech Patentability Issues in India, Rostrum,s Law Review (Mar 25, 2016), https://journal.rostrumlegal.com/nanotech-patentability-issues-in-india/ accessed 24 August 202
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