The objective and purpose of patent law is to encourage scientific research, new technology and industrial projects. Grant of exclusive rights to own, use or sell the method or the product patented for a limited period stimulates new invention of commercial utility.
The fundamental principle of Patents Act, 1970 is that the patent is granted for that invention which is new and useful. It must have the novelty and utility. It is essential for the validity of the patent that it must be the investor’s own discovery as opposed to mere verification of what was already known before the date of patent.
Patents Act, 1970 was made to protect Indian drugs, pharmaceuticals, chemical industries and Indian agriculture from foreign competition. In some cases only process can be patented but product cannot be patented i.e., in cases where only process is patentable, manufacture of that product by different process by another person is not an offence under the Patents Act, 1970.
Meaning of Patent
Patent means a patent granted under the Patents Act, 1970.
Patents is a grant from Government which confers on the grantee, for limited period of time, the exclusive privileges of making, selling and using the invention for which patent has been granted and also of authorizing others to do so.
A patent is a contract between the society as a whole and individual inventor. The inventor gets the exclusive rights to prevent others from making, using selling a patented invention for a fixed period of time, in return for the investors disclosing the details of invention to the public. In this way, inventor is rewarded for his/her endeavours and he is encouraged to disclose the benefits arising out of his/her invention. Patent rights are granted only to new inventions capable of industrial application. The document in the prescribed form duly signed by the concerned authorities and seal is called the patent. A patent right is a property which can be bought, sold, hired or licensed.
What can be patented?
Any “invention” may be patented.
“Invention” means new product or process involving an “inventing step” and “capable of industrial application”.
“Inventing Step” means a feature that makes the invention not obvious to a person skilled in that art.
“Capable of Industrial Application” in relation to invention means that the invention is capable of being made or used in the industry.
Thus, “Patentable Invention” is an invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However it must not fall in to the categories of inventions that are non-patentable under section 3 and 4 of the Patents Act, 1970.
What cannot be patented?
Anything, which is not an invention, cannot be patented.
Patents Act, 1970 provides that the following shall not be covered under the concept of invention:
Who can make an application for grant of Patent?
Patent search is done to verify the uniqueness of your invention. Patent can’t be similar or same to any other patent. Patent search can be done by yourself but you need to be skilled and attentive. A patent search typically deals with search, research, and data mining. It includes a search of the database of the intellectual property regulator of India to verify whether an already existing object or invention is either identical or similar to the applicant’s invention.
Importance of Patent search
How to search for Patents?
To make searching more comfortable, every patent is divided by it’s subject matter. Patent classification schemes have a tree-like structure, and all level of classification has a different reference code. Inventions are classified into technologies Example: – “Engineering” has been divided into classes like mechanical engineering and then into subclasses like machines or equipment. Patent classification is a hierarchical system that incorporates a patent according to the state of technology it falls into. It performs managing and searching patents that fall into the identical technical group or sub-group.
There are various patent classifications like the International Patent Classification, Cooperative Patent Classification (CPC), etc.
The 2 main group schemes used by patent offices globally are:
A Provisional Patent application is an interim step on the road to a patent. It is effective because by filing an appropriate provisional patent application a person can market the invention without fear of losing his patent rights, procuring cash to proceed with development and further patent operations. One of the most important legal documents while applying for patent registration is provisional specification or complete specification. To increase the chances of obtaining patent registration, a provision specification can be filed along with a patent application if the applicant feels that the invention has reached a stage wherein it can be disclosed on paper, but has not attained the final stage.
The average time taken to file a provisional patent application is about 15 – 20 working days, subject to government processing time and client document submission.
Advantages of filing provisional patent
For patent registration in India, applicant needs to follow the steps of registration carefully.
The process of patent registration is as follows-
These above documents must be filed along with application.
Important points to be kept in mind-
The following documents are required to get your patent registered:
Types of patent applications in India
Advantages of Patent Registration
Patent infringement is done when someone uses patent without having any right or permission from its authorized user. It is done for selling the patented inventions. Infringement is considered as illegal. There are two types of infringement- Direct and Indirect.
Action against infringement
Where the rights of patentee are violated, judicial intervention will happen. Patentee must file a suit against violator. Reliefs available are- Interim injunction, Damages on account of profits will be paid or Permanent injunction will be imposed.
Enforcement of suit
The suit must be filed in District court or any court superior to it. In case of suit filed in District court, its revocation can be instituted in High court only. Further, section 104A provides for burden of proof in case of suits concerning infringement.
Suit can be enforced when-
From the period of patent being sealed. During the decision making process suit for infringement cannot be filed. Damages sustained due to the infringement, i.e. between the date of publication of complete specification and the date of grant may be claimed in a different suit. A suit can be filed even if infringement is done after the expiry of the term of the patent. In a case where a patent is obtained wrongfully by a person and is granted to the true and first inventor, no suit for infringement can be enforced before the period of such grant to the true and first inventor.
Frequently Asked Questions (FAQs)
Ans. It is the search of the patent database to determine if there is any other patent application similar or identical to an invention that is to be patented.
Ans. New inventions refer to any technology or pertains to a specific product or service which has not been anticipated by publication in any document or has been used in the country or elsewhere in the world before the date of filing of the application with complete specification i.e. the subject matter has not fallen in the public domain or that it doesn’t form a part of the state of the art.
Ans. A Provisional Patent application is an interim step on the road to a patent. It is effective because by filing an appropriate provisional patent application a person can market the invention without fear of losing his patent rights, procuring cash to proceed with development and further patent operations.
Ans. A patent application can be filed with Indian Patent Office either with complete specification or with provisional specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the application.
Ans. A provisional patent application is unlike a non-provisional application since it will never be examined, but is used to establish a priority date. The provisional application is designed to buy the inventor more time to decide if he wants to pursue a non-provisional patent application, which requires more work and is typically more expensive. Basically, a provisional patent application is a simple description of an idea along with any applicable drawings.
A non-provisional patent application requires a few more components than the provisional patent application. It requires a set of claims, a description of the invention, any applicable drawings of the invention, an abstract, a filing fee, and an oath or declaration.
Ans. An application filed with provisional specification is known as provisional application which is useful in establishing a priority date for your invention. Moreover, filing of a provisional application is useful as it gives sufficient time to the applicant to assess and evaluate the market potential of his invention before filing complete specification. However, it is not necessary to file an application with provisional specification and one can file application directly with complete specification.
Ans. Indian Patent Law follows first to file system. Provisional specification describes the nature of the invention to have the priority date of filing of the application in which the inventive idea has been disclosed. It must be followed by a complete specification describing the details of the invention along with a statement of claims within 12 months after filing of the provisional application. If the complete specification is not filed within the prescribed period, the application is treated as deemed to have been abandoned.