The Indian law of patents is enshrined in the Patents Act, 1970. The Act seeks to provide for legal protection for inventions. The rights granted under the Act, are operative in the whole of India.
A PATENT is an exclusive monopoly granted by the Government to an inventor over his invention for a limited period of time. It provides an enforceable legal right to prevent others from exploiting an invention. Invention as defined under the Act to mean a new product or process involving an inventive step and capable of industrial application.
Generally, there are two types of Patents. The process and product patent. Process patent essentially covers a new process used in the production of a product while a patented product means a product which is a patented invention, or in relation to a patented process, a product.
Patents represent one of the powerful intellectual property rights. The registration of a patent confers on the patentee the exclusive right to use, manufacture or sell his invention for the term of the patent. It means that the invention cannot be commercially made, used, distributed or sold without the patentee's consent. The patent rights can usually be enforced in a court of law.
To be patentable, an invention must, in general, satisfy certain criteria. The invention must be of industrial applicability, must be new and must show an inventive step which could not be deduced by a person reasonably skilled in the field. Above all, its subject matter must be accepted as "patentable" under law. As for example, Inventions which are frivolous or claim anything contrary to well established natural laws are not patentable. There are also other specific categories of inventions which are declared as non-patentable.
An inventor or any other person/company assigned by the inventor can apply and obtain the patent over the invention. A patent is obtained by the inventor or his assignee by filing an application with the appropriate office of the patent office in stipulated forms and fees as required by the Act. An Indian resident can file application for patent at the appropriate Patent Office under whose jurisdiction he resides or has his principal place of business. For non residents, the address for service in India or principal place of business of his agent determines the appropriate patent office where applications for patent can be filed.
It is prudent to conduct searches as early as possible to avoid spending time and money re-inventing a known matter. A patent is not granted to an invention if it is already available with the public either in the form of published literature or common knowledge.
The process of patenting typically involves conducting prior art searches to distinguish the invention and develop a description that illustrates the best method of working the invention. The description of the invention is called specification. Depending upon the sufficiency of the description a specification may be either provisional or complete Specification.
A provisional specification is often the first application filed in respect of an invention, and usually contains only a brief description of the invention. It need not contain claims. Compared with the provisional, the complete specification contains the full description of the invention, and the best method of making the invention work. The complete specification comprises a title, field of invention, the background of the invention, the description of the related art, drawbacks of the prior art, the summary of the invention, the brief description of the figures, the detailed description of the preferred embodiments, claims and abstract. Complete specification must be filed within 12 months from the date of filing of the provisional specification.
Claims are the most important component in the patent specification as it is the legal operative part which define and determine the legal protection sought for. The extent of patent protection for an invention shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.
The procedure for the grant of a patent in India starts with filing of the patent application along with the prescribed fees at the appropriate office of the patent office followed by filing of request for examination in the prescribed format (present time limit within 48 months), after the publication of the application. Presently, application for patent is not open to open to public for 18 months from the date of filing or date of priority, though the applicant can request for early publication. The applications are examined substantively and a first examination report stating the objections is communicated to the applicant. Application may be amended in order to meet the objections. Normally all the objections must be met within 12 months from the date of first examination report. If the applicant does not comply with the objection, the application will be abandoned. Upon complying the requirements the application is published in the Official Journal. At that time, opposition can be filed on limited grounds, but hearing is not mandatory. Patent will be granted if the application is found to be in order. Then, the application and other related documents will be open for public inspection. Thereafter, at any time after the grant but before the expiry of a period of one year from the date of publication opposition on substantive grounds is available. The whole process typically takes at least two years.
The term for patents in India is 20 years from the date of filing of the application for the patent. It is the responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the public domain. Restoration of a patent that lapses due to non-payment of renewal fees can be made within one year of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is restored.
It is the sole responsibility of the patentee to see that his patent is not being infringed. It is the patentee's duty to file a suit of infringement against the infringer. The reliefs which may be usually awarded in such a suit are –
i. Injunctions whether interim or final.
ii. Damages or account of profits.
There is no international or world patent. An inventor has to file an application in each country, where he seeks to protect his invention. However, there are regional and/or International treaties to facilitate the procedure to seek protection like Patent co-operation Treaty (PCT) or European Patent Convention (EPC).
Advocates, Patent & Trademark Attorneys
EF7-10, Vasanth Nagar, Palarivattom
Cochin-682 025, INDIA
Tel:+91484 2337856 / 6457856
Fax :+91 484 2347893 / 2337057
E-Mail : firstname.lastname@example.org