The human mind is a hub of creativity and this creative work is in dire need of protection through several measures. There are several forms of protection for unique and innovative creation which act as a definite measure of encouragement for innovations, one such protection is Patents.
Patents are basically, monopolistic rights granted by the govt. of the country to the owner of the invention in any field whatsoever, to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated within the law and such rights are granted for a limited period of time i.e., for 20 years.
Patentability: Applying For Patent
As we all know that not every invention gets patented. A patent is granted to the owner of the invention when his/her invention satisfies the conditions for Patentability. Such conditions are as follows:
• Inventive step or non-obviousness
• Industrial Application
The Patents Act also deals with the list of exceptions that don’t fall into the invention and hence are non-patentable. (Section 3, 4 of the Patents Act, 1970)
Procedure for Grant of Patent
Persons entitled to use for patents–
(1) Subject to the arrangements contained in section 134 of the Patents Act, 1970, an application for a patent for an invention could be made by any of the accompanying persons, in other words,
(a) By a person professing to be the valid and first creator of the invention;
(b) By a person being the assignee of the individual professing to be the valid and first innovator in regard to the privilege to form such an application;
(c) By the legitimate agent of any deceased individual who is preceding his demise and is qualified to form such an application.
(2) An application under sub-section (1) could be made by any of the persons alluded to therein either alone or mutually with another individual.
Filing of Application: Provisional/Complete: The application should be filed in form 1 amid either provisional or complete specification in form 2 (If an applicant isn’t ready with the entire invention and wish some longer for it then filing for the provisional application is recommended).
Publication of Application: The publication of the appliance is formed after the expiry of 18 months from the priority date and no fees are required by the inventor. A prior- request for publication is often made (Rule 24A) under section 11A (2) of the Patents Act, 1970 in form 9 (optional step).
Request for Examination (REF): The request for examination to look at the application is formed in form 18 (including fee) within 48 months from the filing date by the applicant.
Examination issue of First Examination Report (FER): The controller sends the application to the examiner who checks for patentability as per the patentability criteria and creates the primary examination report (FER).
Any objection raised regarding the patentability requirements during examining the application has got to have complied within 12 months.
Grant of Patent: Once the appliance meets all the wants of patentability, the patent is granted to the inventor with the seal form Patent and Trademark Office Database and is notified within the journal from time to time.
Opposition: Section 25 of the Patents Act, 1970 deals with the opposition to grant of patents and is of two types: Pre Grant (before the patent is granted) and Post Grant (after 1 year of grant of the patent). The opposition is often filed by anyone curious about the sector of the invention in form 7 with the prescribed fee within 12 months from the date of publication of the patent.
Grounds of Opposition to Patent
• Obtained wrongly or fraudulently.
• The invention has been already published and known.
• Not involved in any of the inventive step.
• Not completed within 12 months.
• No clear and explicit description of the invention.
• Not considered an invention supported the topic matters for the invention.
Types of application
There are four sorts of application namely:
This application is filed when the inventor isn’t quite ready with the invention and wishes longer for the event of his invention and also don’t want to lose the priority date. After 12 months of filing the provisional application, the entire application should be filed otherwise the application won’t be considered. The provisional certificate may or might not have claimed.
Complete Application: Filing of the entire application, describes that the invention is complete. The entire application has claimed.
Elements of complete application:
• Description of invention
• The best method of performing
When an inventor or an applicant files the application in Indian Patent and Trademark Office Database claiming for a priority date supported an identical application filed in convention countries, such applications are convention application.
Patent Cooperation Treaty (PCT) – International Application:
A PCT application is a world application governed by the Patent Cooperation Treaty further administered by the planet property Rights (WIPO).
When an applicant feels that he has encountered an invention which may be a slight modification of the invention that he has already applied for or has obtained the patent, the applicant can choose the patent of addition if the invention doesn’t involve a considerable inventive step. There’s no got to pay the separate renewal fee for the patent of addition during the term of the most patent and it expires alongside the most patent.
Patent of Addition:
when application made by applicant claims quite one invention, the applicant on his own files two or more applications, as applicable for every invention. This sort of application, divided out of the parent one, is named a Divisional Application. The priority date for all the divisional applications is going to be an equivalent as that claimed by the Parent Application
Documents required for application
• Application for grant of the patent is specified in form 1
• Proof of right to file the appliance from the inventor.
• Provisional/complete specification in form -2
• Statement and undertaking under section 8 in Form 3
• Declaration on inventor-ship
• Power of authority in form 26
• Applicant’s signature and an appropriate date
• If application pertains to a biological material obtained from India, submission of the permission from the National Biodiversity Authority
• Request for Examination- Form 18
• Requisite Statutory Fees
• Rights of Patentee
Section 48 of the Act deals with the rights of conferring upon the patentee after the grant of the Patent.
Infringement and Remedies for patent
The infringement of patent refers to the violation of the rights of the patent holder that’s whenever an individual exercises the rights of the patent holder without the patent owner’s consent, he causes infringement.
Types of Patent Infringement:
• Direct Infringement – Directly selling, marketing, or using commercially, any product which is substantially on the brink of the patented product without the consent of the patentee.
• Indirect Infringement- Deceitful and accidental violation in any incident is an indirect infringement.
• Contributory infringement- If the person knowingly infringes on the rights of the patent holder, it refers to contributory infringement.
There are some acts that might not cause infringement are as follows:
• Government use: As per Section 100 of the Patents Act, 1970 a patented invention is often employed by the central government for its own use and as per section 47 of the Patents Act, 1970, the patented invention is often imported by the govt.
• Exemption on experiments and research: the utilization of a patented invention for experiments and teaching purposes doesn’t come under infringement.
• Patented inventions on drugs and medicines are often imported by the govt.
• Any patented invention on foreign vessel/ aircraft/ vehicle involves India isn’t an infringement
In the world of rapidly growing technology, the concept of a patent becomes essential for new discoveries the patents help the organization protect its intellectual properties. Due to which the government has decided to protect the interest of inventors via a rigid patent system in India, the patent term lasts up to 20 years.
“The views of the authors are personal“
Frequently Asked Question
What are Patents?
A patent is a legal right that is granted by the government to an individual or inventor with a view to excluding other people from selling, making or using the same invention for a period of time.
How long does patent approval takes place?
It takes about 4 to 5 years for a patent to be granted. This duration is after fulfilling all the patentability criteria.
Where is the patent application filled?
The approved office to file the patent application is at the Indian Patent Office (IPO). The patent office in India has 4 branches in Chennai, Mumbai, Kolkata, and Delhi.
What is the Patent Renewal Process?
The patent is in force when the individual or organization has to pay renewal fees after every second year. The individual or organization will have to be renewing the patent every year until the 20 years terms elapse. The renewal fee can be paid beyond the due date.