What is a Patent in India? How to get it?
What is a Patent?
A Patent in India is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. A patent provides protection for the invention to the owner of the patent. The protection is granted for a limited period, generally 20 years.
Merely to have a patent does not give the owner the rights to use or exploit the patented invention. That right may still be affected by other laws such as health and safety regulation, or the food and drugs regulation or even by other patents.
The patent, in the eyes of the law, is a property right and it can be given away, inherited, sold, licensed and can even be abandoned. As it is conferred by the government, the government in certain cases even after grant or even if it has been, in the meantime, sold or licensed can revoke it.
How to get a Patent in India?
Click here: How to file an application for Patent in India.
What kinds of Inventions can be Patented in India?
An invention must, in general, fulfill the following conditions to be protected by a patent in India. It must be of practical use; it must show an element of novelty, that is, some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called “prior art”. The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field. Finally, its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.
Are there inventions which are not patentable in India?
Yes, according to The Patents Act, 1970 the following inventions are not patentable:
1. Frivolous or claiming anything obviously contrary to established natural laws.
2. Contrary to public order or morality or prejudicial to life or environment.
3. Discovery of scientific principle or formulation or discovery of living or nonliving substance.
4. Discovery of new form or property or use of a known substance or of a new use of a known process or machine or an apparatus not resulting in a new product.
5. Substance obtained from admixture of known components resulting in only aggregation of their properties.
6. Mere rearrangement or duplication of known devices.
7. A method of agriculture or horticulture.
8. Medical treatment or procedure of humans or of animals.
9. Plants or animals or seeds and biological process of production or prorogation of these.
10. Mathematical or business method or computer programme or algorithm.
11. Artistic or aesthetic creation like literary or dramatic or musical or cinematographic or television production.
12. Scheme or rule or method of performing any mental act or of a game.
13. Presentation of information.
14. Topography of integrated circuits.
15. Aggregation or duplication of known properties of components.
16. Inventions relating to atomic energy.
What kind of protection does a Patent in India offer?
Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.
What Rights does a Patent Owner have?
A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.
Why are Patents necessary?
Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions in the form of economic monopoly over their inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced. The economic and scientific monopoly ie limited by the period of time, usually twenty years.
How is a Patent Granted in India?
The first step in securing a patent is the filing an application for patent in India. The patent application generally contains the title of the invention, as well as an indication of its technical field; it must include the background and a description of the invention, in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied by visual materials such as drawings, plans, or diagrams to better describe the invention. The application also contains various “claims”, that is, information which determines the extent of protection granted by the patent. The application is minutely examined to ensure that it contains no claim over any prior art, and the claims are within the scope of disclosure described in the specification. The applicant needs to overcome all objections of the Patent Office in order to secure a successful grant of patent.
Who grants a Patent in India?
A patent in India is granted by a national patent office known as Intellectual Property office of India. Patents in other countries are granted by national offices or by a regional office that does the work for a number of countries, such as the European Patent Office and the African Regional Intellectual Property Organization. Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.
How can a patent be obtained worldwide?
At present, no “world patents” or “international patents” exist.
In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.
Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. Further information concerning the PCT is available.
Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection.
Can I discuss the details of my invention with a potential investor before filing a patent application?
It is important to file a patent application before publicly disclosing the details of the invention. In general, any invention which is made public before an application is filed would be considered prior art (although the definition of the term “prior art” is not unified at the international level, in many countries, it consists of any information which has been made available to the public anywhere in the world by written or oral disclosure). In countries which apply the above definition of the term “prior art”, the applicant’s public disclosure of the invention prior to filing a patent application would prevent him/her from obtaining a valid patent for that invention, since such invention would not comply with the “novelty” requirement. Some countries, however, allow for a grace period, which provides a safeguard for applicants who disclosed their inventions before filing a patent application, and the novelty criteria may be interpreted differently depending on the applicable law.
If it is inevitable to disclose your invention to, for example, a potential investor or a business partner, before filing a patent application, such a disclosure should be accompanied by a confidentiality agreement.
Written by Mahesh Bhagnari, Patent & Trademark Attorney in India.
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