FAQs Patents in India

What is a patent?
Why are patents necessary?
Why should one patent his invention?
What are the criteria adopted for grant of a patent to an invention?
What is patentable?
What is not patentable?
When should an application for a patent be filed?
Can a published or disclosed invention be patented?
What is considered as the date of patent?
What is the term of a patent?
How does a patent expire?
Upto what extent the inventor has to disclose his/her invention to get a patent?
What does a patent application contain?
What is prior art?
What is a claim? What is the difference between an independent claim and a dependent claim?
What is an Examination Report?
Can patents be transferred or sold?
Can the patents be licensed?
What do the terms "patent pending" and "patent applied for" mean?
Is the Indian patent valid in a foreign country?
Is there an International/Global patent?

What is a patent?
A Patent is an exclusive monopoly granted by the Government to an inventor over his invention for limited period of time. Patent is a form of intellectual property.

Why are patents necessary?
The patents encourage further and continuous innovations that help to improve the quality of human life.

Why should one patent his invention?
Since a patent confers legal rights concerning the exploitation of an invention, it allows the owner the best opportunity to profit from the invention by preventing others from copying it. An inventor does not need a patent in order to exploit an invention; but without a patent the inventor would not be able to prevent others from copying the invention. The patent gives the holder, the right to decide as to who can use the patented invention for the period in which the invention is protected. The invention cannot be made, used, distributed or sold without the authorization of the patent owner. The patent owner is also conferred the right to transfer, sell, mortgage or license the patent, just like any other personal property.

What are the criteria adopted for grant of a patent to an invention?
To qualify for patent protection, an invention must be new, useful and non-obvious.
■Novelty: An invention must not be in the public domain before the patent applicant invented the invention. The Indian Patent Office will not grant a patent on an invention that was publicly used or "on sale" - by anyone, including the inventor -- before the inventor filed a patent application.
■ Usefulness: An invention must be useful for some purpose, and must possess industrial applicability for the grant of patent. Utility is not presumed, but must be disclosed as part of the patent application.
■ Inventiveness (Non-obviousness): The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.

What is patentable?
Invention means any new and useful:
■ Process, method or manner of manufacture
■ Machines, apparatus or a product
■ Substances produced by manufacture and includes any new and useful improvements of any of them and an alleged invention.

Inventions claiming substances intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi conductors and inter-metallic compounds) are now patentable under the Patents Act, 1970.

What is not patentable?
■ An invention, that is frivolous or that claims anything obviously contrary to well established natural laws;
■ An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health;
■ The mere discovery of a scientific principle or the formulation of an abstract theory;
■ The mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;
■ A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
■ The mere arrangement or rearrangement or duplication of known devices, each functioning independently of one another in a known way;
■ A method of agriculture or horticulture;
■ Inventions relating to atomic energy.
■ Any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals.
■ Plants and animals in whole or any part thereof other than microorganisms.
■ Mathematical or business method or a computer program per se or algorithms
■ literary, dramatic, musical or artistic works, cinematographic works, television productions and any other aesthetic creations.
■ Mere scheme or rule or method of performing mental act or playing game.
■ Presentation of information.
■ Topography of integrated circuits.
■ An invention which in effect, is traditional knowledge or is based on the properties of traditional knowledge.

When should an application for a patent be filed?
A patent application should be filed at the earliest possible once invention is completed. A provisional application can also be filed disclosing the essence of the nature of the invention so as to record the priority of the inventor applicant. Delay in filing an application may entail risks like others might forestall the first inventor by applying for a patent for the said invention or by the inadvertent publication of the invention by the inventor or by some other independently of him.

Can a published or disclosed invention be patented?
No. the inventor must file the patent application before the invention is publicly offered for sale, used or displayed. Publication or disclosure of the invention anywhere by the inventor before filing of a patent application would disentitle the invention to be patentable.

What is considered as the date of patent?
The date of patent is the date of filing the application for patent, whether provisional or complete. The term of the patent is counted from this date of application.

What is the term of a patent?
In India, it is 20 years from date of application or date of priority whichever is earlier.

How does a patent expire?
A patent can expire in the following ways:
■ The patent has lived its full term i.e. the term specified by the patent act of the country.
■ The patentee has failed to pay the renewal fee. A patent once granted has to be maintained by paying annual renewal fee.
■ The validity of the patent has been successfully challenged and the patent is revoked.

Upto what extent the inventor has to disclose his/her invention to get a patent?
An inventor has to disclose his invention in such a manner that any person, other than the inventor, skilled in the art should be able to work the invention.

What does a patent application contain?

A patent application has the following information:
1. Bibliographic: It contains the title of the invention, date of filing, country of filing, name of the inventor etc.
2. Background of the invention or State of the art: It should contain the state of the art available on the date of filing his invention which lists the shortcomings and found in the prior art and define its problem.
3. Description of the invention: It describes the invention duly supported by workable examples along with diagrams or charts, if needed. The invention has to be described in detail so that a person skilled in the art can work out the invention.
4. Claims: It establishes the boundaries or scope of an invention, upon which the protection is granted.

What is prior art?
Publicly disclosed inventions, including patented inventions, are known as prior art that can be cited in the Examination Report. Publicly disclosed inventions are considered prior art irrespective of where or in what form the public disclosure occurred. Identical or similar inventions that others publicly disclose anywhere in the world before an inventor files his patent application - known as prior art - may prevent the inventor from obtaining patent protection because the invention would not be considered novel.

What is a claim? What is the difference between an independent claim and a dependent claim?
Patent claims establish the boundaries or scope of an invention, including the best mode to make, use or sell it. A dependent claim relies upon an independent claim and includes all the limitations of the independent claim. The independent claims will be the broadest protection that you will have and the dependent claims are typically drafted to add further limitations and specifics to your invention.

What is an Examination Report?
Examination report is a written statement by an Examiner regarding an application which may be a notice of acceptance, or an objection to the application. In the case of an adverse report, the reasons for the examiner's rejection or objection will be stated, and an applicant is given a limited time to comply with the requirements, or make arguments regarding the report

Can patents be transferred or sold?
A patent is personal property and may be transferred, sold, mortgaged, bequeathed by a will or passed to the heirs of a deceased patentee. The patent law provides for the transfer or sale of a patent, or of an application for patent, by an instrument in writing.

Can the patents be licensed?
The right holder of a patent may grant licenses to others. A patent license agreement is in essence nothing more than a promise by the licensor not to sue the licensee. No particular form of license is required; a license is a contract and may include whatever provisions the parties agree upon, including the payment of royalties, etc.

What do the terms "patent pending" and "patent applied for" mean?
They are terms used by a manufacturer or seller of an invention to inform the public that an application for a patent on that invention is on file with the PTO. These do not have any legal effect. The protection afforded by a patent will start only upon the actual grant of the patent

Is the Indian patent valid in a foreign country?
The patent from Indian Patent Office is valid within the territory of the Indian Union and has no effect in a foreign country. An inventor who wishes patent protection in other countries must apply for a patent in each of the other countries or in regional patent offices.

Is there an International/World patent?
There is no International or World Patent. An inventor has to file an application in each country, where he seeks protection for his invention. There are regional and international treaties to facilitate the procedure like European Patent Convention (EPC) or Patent co-operation Treaty (PCT).


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