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In today’s world, Intellectual Property Rights (IPR) is a powerful tool. The chance of an invention being infringed upon without the inventor’s awareness is very high. As the value of IP has grown, cases of IP theft have become commonplace in the digital age, sometimes even resulting in the collapse of a business. Any country’s economic development is dependent on innovation. There has been a surge in IP awareness in India and the notion of the need to protect one’s innovation in recent years. As a result of this greater awareness, the number of patent applications filed in India has gradually increased. The Controller General of Patents, Designs, and Trademarks (‘CGPDTM’) is India’s chief administrator of the patent system, working under the Department of Industrial Policy and Promotion (‘DIPP’), Ministry of Commerce and Industry. The Patent Act of 1970, as modified in 2005, and the newly amended Patent Amendment Rules, 2019, are the primary sources of Indian patent law.

Patent Rights in India

A patent is an IPR to make, use or sell an invented product or method for a set period of time. In India, an invention relating to a new product or technique that involves an inventive step and has potential for industrial use can be patented. However, it must not fall under the set of ‘non-patentable’ innovations provided under Sections 3 and 4 of the Patents Act, 1970. The term invention refers to a new product or process involving an inventive step and capable of industrial application.[1] Patents are statutory rights that grant a monopoly to the patentee to prevent others from manufacturing and appropriating or importing the patented product or method for personal gain without the patentee’s approval.

The characteristics of an invention to be qualified to apply for a patent include:

  • Brand new.
  • Must comprise an innovative stage
  • Capable of being used in an industrial setting
What Is Patent Infringement, And What Are The Standard Allegations Made For Patent Infringement?

The violation of a patent holder’s exclusive rights refers to Patent Infringement. Section 48 of the Patents Act, 1970 gives the patent holder/ patentee an ‘exclusive right’ to exclude any third- party from making, using, offering, selling, manufacturing, etc. [2]

Standard allegations for patent infringement include-

  1. Direct patent infringement is defined as the act of creating or selling something without first acquiring an appropriate or valid licence from the patent holder. The perpetrator bears full responsibility for the act of patent infringement.
  2. Indirect patent infringement refers to contributory infringement and causing others to infringe on a patent. Even if a corporation did not infringe on a patent at the outset, it could nevertheless be held liable for patent infringement.
  3. Contributory infringement is a sort of patent infringement that involves the acquisition, purchase, or importation of a component of a product that aids or assists in the manufacture of a patented innovation or product. A person must show that the component’s extensive usage would be employed to produce a patented object to prove contributory infringement.
  4. When a person or company contributes components or assists in creating a patented product, this is known as induced patent infringement. It can also take the form of providing instructions, blueprints, or methods to reproduce an already patented innovation.
  5. The literal infringement is about the claim-by-claim relationship between the infringing device or process and the patented device or process.

In the matter of F. Hoffmann-La Roche Ltd vs Cipla Ltd.,[3] two plaintiffs, F. Hoffmann-La Roche Ltd. and OSI Pharmaceuticals Inc., had sued Cipla Ltd. in Mumbai for a permanent injunction prohibiting patent infringement, rendition of accounts, damages, and delivery. An Indian generics company, Cipla, won a significant patent infringement case in the Delhi High Court using Cipla’s generic version of the anti-cancer drug Erlotinib. The case marked the first-ever patent litigation in India since the country’s 2005 Product Patent Regime, which incorporated public interest and pricing concerns, as well as the prohibition of ever greening.

What gets to patent innovations developed by Artificial Intelligence (AI)?

Before we ponder on the question of AI invention patents, we must understand what AI is really. Artificial Intelligence is the ability of a computer, or a robot controlled by a computer to perform jobs that are customarily done by people, for they necessitate human aptitude and discernment.

The invention of new items and technologies is one application of AI decision-making that some scientists have recently examined. As a result, patent offices and courts around the world must now assess whether artificial intelligence may be a patent inventor. AI has many advantages, and as can be seen from the above, however, they also have certain drawbacks. Such as, they are not considered “natural” persons. A recent US District Court ruling exemplifies the US government’s unwavering stance. The District Court ruled in September 2021 that there was “overwhelming evidence” that Congress defined “inventor” under the Patent Act to mean only natural individuals.[4] As a result, AI cannot be recognised as a co-inventor on a patent. In a similar vein, the United Kingdom recently decided that AI cannot be considered an inventor under British law. Therefore, patent inventors must be natural individuals, legal persons, or body’s equivalent to legal persons operating in particular capacities.

To answer the question as to who owns the inventions made by the AI, it depends upon who is the “creator” or the person who develops the work. If the “creator” is an employee, then the employer is the owner of the work. There have been instances wherein the “creator” cannot be identified; in such cases, the invention made by AI is not patentable. The patentability of AI inventions is vague and uncertain due to unresolved legal difficulties and the unpredictable nature of the art. When comparing AI-generated inventions to AI-assisted inventions, the ambiguity is more colossal. The Indian Patent Office has yet to establish any guidelines for examining AI innovations, leaving examiners perplexed as to how they should proceed. In most countries, if no human creator can be located for an invention, no copyright will exist for it, and it will consequently fall into the public domain. The repercussions might be profound if governments and courts rule that ideas created by AI are not patentable. Investors and companies would be less motivated to fund and conduct productive research utilising AI innovators if their potential return on investment was restricted. There is a risk that society may not see the development of valuable and life-saving discoveries.


India may be seen as a rear centre for multinational technology firms, but the rate of inventions in the nation has been consistently growing in the past few years, indicating an increased focus on intellectual property in innovation. A patent is a constitutional right permitted by the government to the patentee for a specified time in trade for full disclosure of their innovation and the right to prevent others from making, consuming, marketing, or importing the patented product or method without their agreement. The most fundamental aspect of a patent is that information about the product or procedure must not be available to the general public. The primary goal of developing the patent concept was to encourage scientific creation while also ensuring that the creator received monetary compensation. Since the core of patent law is that inventors are “real” people, dealing with an investor who is the machine is presently difficult. As patent applications with an AI system listed as the inventor have been filed in several countries, courts all over the world are currently debating how to handle this issue.

Author(s) Name: Ashpruha Patnaik (Symbiosis Law School, Hyderabad)


[1] The Patents Act, 1970 § 2, No. 39, Acts of Parliament, 1970 (India).

[2] The Patents Act, 1970 § 48, No. 39, Acts of Parliament, 1970 (India).

[3] F. Hoffman-La Roche Ltd v. Cipla Ltd., SLP (Civil) No. 20111/2009, (Supreme Court of India, 2009)

[4] Thaler v. Hirshfeld, 558 F. Supp. 3d 238.