A patent is an exclusive right granted for an invention. It is granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article for a limited period of time. Patent is a proprietary right in the eyes of law and therefore it can be given away, inherited, sold, licensed and can also be abandoned. In short patents protect designs that provide functional solutions to problems.
Law applicable in India
The law protecting patents in India is governed by The Patents Act, 1970.
Patentable Invention
Patentable Invention means any new and useful art, process, method or manner of manufacture; machine, apparatus or other article; or substance produced by manufacture and includes any new and useful improvement of any of them, and an alleged invention.
Essential requirements of a patentable invention
There are three essential requirements of a patentable invention :
(i) Novelty
(ii) Inventiveness (Non-obviousness)
(iii) Usefulness
Novelty
Novelty is a fundamental requirement and an undisputed condition of patentability. An invention will not be novel if it has been disclosed in the public through any type of publication anywhere in the world. Prior use of invention before filing an application for patent can also destroy novelty. Oral description of the invention in some seminar/conference can spoil novelty if the patent application is not filed within a stipulated time period, which is six months in India.
Inventiveness (Non-obviousness)
A patent application involves an inventive step. The expression "inventive step" conveys the idea that it is not enough that the claimed invention is new but it must be inventive that is, it must be the result of a creative idea, which is non-obvious.
Usefulness
An invention in order to be patentable must possess the characteristic of utility i.e. it must be a kind which can be applied for practical purposes. No valid patent can be granted for an invention devoid of utility.
Exceptions to Patent Protection
The following inventions are not patentable.
| 1 |
An invention which is frivolous or which claims anything obvious or contrary to well-established natural laws; |
| 2 |
An invention the primary or intended use of which would be contrary to law or morality or injurious to public health: |
| 3 |
The mere discovery of scientific principle or the formulation of an abstract theory; |
| 4 |
The mere discovery of any new property or new use for a known substance or of the mere use of known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant; |
| 5 |
A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or the process for the producing of such substance; |
| 6 |
The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way; |
| 7 |
A method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment or for the existing machine, apparatus or other equipment or for the improvement or control of manufacture; |
| 8 |
A method of agriculture of horticulture; |
| 9 |
A process for the medical, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of decease or to increase their economic value or that of their products; |
| 10 |
An invention relating to atomic energy; |
| 11 |
In respect of food, medicines or drug, patents are granted only for the process of manufacture of the substance but not for the substance itself; |
| 12 |
In respect of substance produced by chemical processes, patents are granted only for the process of manufacture but not for the substance itself. |
Publication or disclosure of invention
Generally it has been seen that out of ignorance of Patent Law inventors publish their inventions in ewspapers or scientific and technical journals before applying for patent. Publication or disclosure of invention could constitute a bar for the subsequent patenting of it. Similarly the use of the invention in public or even in secrecy, prior to the date of the patent would be a fatal objection to the grant of a patent. Hence inventors should maintain absolute secrecy about their invention before they apply for a patent. An invention cannot be commercialized before obtaining a patent and at the same time an inventor should not wait till the invention is fully developed for commercial utilization. Therefore it is advisable to apply for a patent at the earliest possible date.
Application for obtaining Patent
Any person who is the actual inventor even if he or she is a minor may apply for a patent either alone or jointly with any other person. If two or more persons make an invention jointly, they apply for a patent as joint inventors. An application for a patent may also be made by a person being the assignee of the actual inventor or by the legal representative of any deceased person who immediately before his death was entitled to make such an application.
Cost of filing a Patent application
The Government fee for filing a patent application in India is Rs. 1500/- for individuals and Rs. 5000/- for legal entities. A sealing fee of Rs. 1500/- for individuals and Rs. 5000/- for legal entities has to be paid at the time of grant of patent.
Patent drawing of a Gliders by Wright Brothers (1904) Courtsey: New & Improved...by R. Baker.
| Documents required for filing an application |
| 1 |
Application form in triplicate. |
| 2 |
Provisional or complete specification in triplicate. If the provisional specification is filed it must be followed by complete specification within 12 months. |
| 3 |
Drawing in triplicate (if necessary). |
| 4 |
Abstract of the invention (in triplicate). |
| 5 |
Information and undertaking listing of number, filing date and current status of foreign patent application (if filed) in duplicate. |
| 6 |
Priority document (if priority date is claimed). |
| 7 |
Declaration of inventorship where provisional specification is followed by complete specification or in case of convention application. |
| 8 |
Power of attorney (if filed through patent agent). |
| 9 |
Fee in cash/by local cheque/by demand draft. |
Patent Documents
There are mainly two types of patent documents
1. Provisional Specification
2. Complete specification
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| Patent drawing of the Manvom safety cab with Gillet & Chapman's improvements (1836). Courtsey: New & Improved...by R. Baker. |
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| Patent drawing of the Propulsion Engine by Whittle (1930) Courtsey: New & Improved...by R. Baker. |
Provisional Specification
A provisional specification may be filed along with an application for patent. Provisional specification helps to establish the identity of the invention and registers the ownership of the invention in the Patent Office on first cum first served bases. It need not contain full and specific description. It is sufficient if it contains a general description of the invention, its field of application and the anticipated results. Where an application for patent is filed along with a provisional specification, a complete specification should be filed within 12 months from the date of filing of provisional specification, which may be extended by three months.
Complete Specification
A complete specification should contain beside the title, a full and particular description of the invention, its operation or use, the method by which it is to be performed and claims defining the scope of the invention for which protection is sought. Submission of complete specification is necessary to obtain a patent. If the complete specification is not filed within the stipulated time period after the provisional specification the patent application will be treated as deemed to have been abandoned and no further action can be taken by the Patent office.
Examination of Patent Application
The patent application is examined by the Examiner to see whether it complies with the requirements of the Patents Act, 1970 and the Rules, whether there is any lawful ground of objection to the grant of the patent and whether the invention has already been published or claimed by any other person. After examination the Patent office will communicate to the pplicant the objections, if any to the grant of patent. In many cases objections can be removed by making suitable amendments to the description of the invention and the claims. If the objections are satisfactory removed by the applicant, the controller will accept the complete specification and advertise the same in the Official Gazette.
Opposition to grant of Patent
At any date within three months from the date of advertisement of a complete specification, any person interested may give a notice of opposition to the grant of the patent to the Controller. The Controller will forward a copy of the notice of opposition to the applicant who will be at liberty to file a reply within one month from the date of receipt of the copy of opposition. Thereafter the Controller after giving both the parties an opportunity to be heard decides the issue.
Grant or sealing of Patent
If the application is not opposed or the opposition is decided in favour of the applicant or is not refused by the Patent office the patent is granted or sealed on payment of sealing fee within six months from the date of advertisement. The date of the patent is the date of filing the complete specification.
Term of Patent
The grant of patent is for a limited period only and not perpetual. In India the term of Patent varies with types of inventions. The term of patent in respect of method or process related to food or drug is five years from the date of sealing of patent or seven years from the date of filing a complete specification. In respect of all other inventions the term is fourteen years from the date of patent.
Rights of Patentee
Where the Patent is granted for an article, the exclusive right to make use, exercise, sell or distribute such article or substance in India is conferred on the patentee himself, his agents or licensees. In case where a patent is granted for a method or process of manufacturing an article or substance, confers on the patentee an exclusive right to use the method or process in India. However, such a patent does not confer any right to the resultant product.
Renewal of Patent
The term of patent protection is renewable. A patent can be kept alive by paying prescribed fees within the prescribed period. The first renewal fee is to be paid after expiry of the second year from the date sealing the patent. Thereafter the renewal fee is to be paid on the expiry of every succeeding year. The patent will cease to have effect on expiry of the term and it will be open to public.
Infringement of Patent
An action against infringement of patent can be taken by instituting a civil suit in any District Court or High Court having jurisdiction to try the suit. A suit for infringement can be filed only after the patent has been sealed and within the period of three years from the date of infringement. The relief available in a suit for infringement includes an injunction, either damages or an account of profits.
Patent Cooperation Treaty (PCT )
Patent Cooperation Treaty (PCT) is a multilateral treaty. Through PCT, an inventor of a member country of PCT can simultaneously protect his/her invention in all or any of the member country. Under PCT the inventor can protect the invention in several countries by filing a single application, he is not required to file separate application for each country. |
