patent

PATENT ACT

WHAT IS A PATENT?

A Patent is an exclusive monopoly rights granted

by the Government to an inventor over his

invention for a limited period of time. Patent is

recognition to the form of intellectual property

manifested in invention.

WHAT CAN BE PATENTED?

Any invention can be patented. However, there are certain criteria that such invention should fulfil, including:

• It should be novel.• It should be non obvious.• It should possess an inventive step.• It should have industrial application.

WHAT IS MEANT BY ‘NOVELTY’?

Novelty simply means that the invention comprising

of a product or a process should not have been

anticipated by publication in any document or

should not have been used in the country or

anywhere in the world before the filing of the patent

application.

WHAT IS MEANT BY INDUSTRIAL APPLICABILITY?

Industrial applicability means the invention should be

capable of being made or used in any kind of industry.

Inventions which lack industrial applicability are

known as utility models. They are, unfortunately, not

protected in India.

WHAT CANNOT BE PATENTED

Inventions that fall under S 3 and 4 of the Patents Act cannot

be patented. These include inventions with regard to atomic

energy, inventions against public morality and decency,

agricultural and horticultural methods, medical and surgical

processes etc.

WHO CAN FILE A PATENT APPLICATION?

The first and true inventor of the patent can apply

for a patent protection.

In the event of his/her death, the legal

representatives can file a patent application.

Further, if the patent is assigned to someone, then

the assignee can make such application.

WHERE SHOULD THE PATENT APPLICATION BE FILED?

There are four Patent Offices in India-

Mumbai.

Chennai.

New Delhi.

Kolkata.

WHAT SHOULD THE APPLICATION CONTAIN?

Your application for filing a patent should contain

the following documents:

• Application for grant of patent in Form 1.

• Proof of right to file the application from the

inventor. This is applicable if the invention has been

assigned to someone else.

• Provisional or complete specification in Form 2.

• Power of authority in Form 26 if filed through a patent

agent.

• Application should bear the signature of the

application or authorized person/ patent agent along

with the name and date.

WHAT IS MEANT BY A SPECIFICATION?

In order to obtain a patent, an applicant must fully and

particularly describe the invention for which the protection is

claimed. It can be either provisional or complete in nature. A

complete specification is given when the invention is complete

i.e. ready to use. On the other hand, a provisional specification

is given when the invention has reached a stage wherein it can

be disclosed on paper, but has not attained the final stage.

WHAT IS MEANT BY A SPECIFICATION?

The disclosure of the invention in a complete specification

must be such that a person skilled in the art may be able to

perform the invention. This is possible only when an applicant

discloses the invention fully and particularly including the best

method of performing the invention. However, this will not

lead to misappropriation of your invention. Any person who

comes up with a similar invention after you have filed for a

patent will be barred from doing so.

WHAT IS MEANT BY ‘PRIORITY DATE’?

Priority date is the date on which the first

application is filed for the invention. A

priority date is very important as this gives

precedence to your invention over all other

similar inventions that may come up in the

future.

WHAT HAPPENS AFTER THE APPLICATION IS SUBMITTED?

Once the Patent office receives your application, a date and serial

number is allotted to it. The application is digitized, verified, classified

and uploaded to the internal server of the office. Next is the screening

of the application. The application is screened for any international

patent classification, technical field of invention for allocation to an

examiner in the respective field. The application is also screened to see

whether it bears any relevance to defence or atomic energy and

whether the abstract requires any correction or completion.


Next, comes the scrutiny. The application is

scrutinized for appropriate jurisdiction, proof of

right to file and whether all the relevant documents

have been submitted. The invention is then

examined by the examiner and a report is prepared

for the approval of the Controller General.


After 18 months of the date of filing or the priority date (whichever

is earlier), the application for patent is published in the official

journal. Now comes the part where the invention is open for pre-

grant opposition.

Though the Patent Office scrutinizes the applications, in order to be

absolutely sure, a chance is given to the public to file an opposition

under the grounds listed under S 25 (1) of the Patents Act. This

opposition has to be filed within 6 months from the date of

publication.


In the event of absence of an opposition, the

patent is granted and it is published in the

official journal.

WHAT ARE THE RIGHTS SECURED THROUGH A PATENT?

With the grant of a patent, the inventor gets the exclusive

right to prevent any third party from making, using, offering

for sale, selling or importing for such purposes that product

in India.

Also, in the case of a process patent, the inventor gets the

exclusive right to prevent any third party from using,

offering for sale, selling or importing for such purposes the

product obtained directly by such process in India.

patent

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