Introduction:
Intellectual property is a cognitive production that comprises innovations, literary and creative works, names, pictures, and symbols utilised in business. Patents, copyright, and trademarks safeguard intellectual property, allowing people to profit from their inventions and gain notoriety. As previously noted, a patent is one such method for protecting intellectual property.
A patent grants the owner of an invention the exclusive legal right to prevent others from manufacturing, selling, or utilising his creation for a certain period of time. The innovation might be a small modification to an existing invention or a completely unique invention in its own right. It is critical to note that the innovation must be patentable in order to be protected, which means that it must have three basic characteristics that the patent law requires.
A patent is a government-granted exclusive right that allows the patentee/inventor to exploit his creation for a set length of time. The major goal here is to promote new inventions in a variety of disciplines. The innovation might be an improvement on a previous invention or a completely unique invention in its own right.[1]
Only if the innovation is patentable is a patent awarded. According to the current Indian Patent Law, The Patents Act, 1970, a patent is valid for 20 years from the date of application submission and is subject to an annual renewal cost. After the period expires, it enters the public domain, and the patentee’s exclusive right ceases to exist.[2]
Amendments to the Act, such as the Patent Amendment Act of 2005, broadened the scope of patentable goods in all fields of technology, including chemicals, germs, pharmaceuticals, and food, among others. The Patent Regulatory Authority in India is the Patents Registrar, which is part of the Ministry of Commerce and Industry’s Office of Controller General of Patents, Designs, and Trademarks.
What is Patent Registration in India?
It is an act of safeguarding your invention. The first action an innovator takes to safeguard his or her idea from exploitation is to file a patent. Patent filing in India is a time-consuming procedure, but with the right direction and help, it may be completed swiftly. Individuals who want to get a patent should seek advice from experienced patent attorneys. Before obtaining a patent registration, a thorough examination is performed to determine whether the product is inventive or original, as well as industrially relevant. An individual can examine the database of India’s intellectual property authority to see whether there is an object or innovation that is the same or similar to the applicant’s creation. However, patent registrations are not available for all innovations, and the invention must meet certain requirements in order to be granted a patent in India.[3]
Who can File a Patent in India?
Section 6 of the Patent Act, 1970 states that a patent application can be filed by any of the following individuals, either alone or in collaboration with another individual:
- By anyone claiming to be the true and first inventor of the invention.
- By anyone claiming to be the assignee of the person claiming to be the true and first inventor in respect of the right to file such an application.
- Any legal representative of a deceased individual who was eligible to make such an application immediately before his death.[4]
In the case of innovations made during the course of an employee’s work, in the absence of a particular contract in favour of the employer, the employee owns the invention. All applications must be submitted in the appropriate format (FORM 1).[5]
What can be Patented?
Patentability is a basic requirement that must be met in order for an invention to be patentable. The patentability of an invention is determined by three factors.
Novelty
The invention must be new. It is a necessary prerequisite. In order for an invention to be considered novel, it must not have previously been in the public domain or be part of the state of the art. The term “state of the art” refers to material that was made accessible to the public prior to the priority date of the invention.
Inventive Step
An innovative step must be included in the innovation. To put it another way, an inventive step occurs when technological advancements in comparison to existing knowledge occur in an existing product or there is enhanced economic importance in the development of an already existing technology and the invention is not evident to persons versed in the art.
The Supreme Court stated in Bishwanath Prasad RadheyShyam v. Hindustan Metal Industries,[6] that originality and creative step in an invention is a mixed matter of law and fact, primarily depending on the facts of the case. There is no absolute test that can be created that is consistently applied in all cases; nonetheless, several general characteristics can be specified.
Whether the claimed method of production was widely known, utilised, and practised in a nation prior to or at the time of the patent? If the response is still yes, it will be seen as a negative novelty.
Industrial Application
The innovation should be able to be manufactured or utilised in a commercial setting. There is no requirement to demonstrate actual use of the invention, only its possibility. Patents cannot be granted for purely abstract or conceptual inventions.
Aside from the requirements listed above, the patent should not fall within Sections 3 and Section 4 of the Act, which deal with non-patentable innovations. Section 3 describes frivolous innovations as those that are opposed to well-established natural law, or whose commercial exploitation would be contrary to public order or morality, or which causes serious prejudice to human, animal, or plant life, or to the environment; or is traditional knowledge and merely a duplication of known properties of traditionally known components; or is an invention related to atomic energy, as defined in section 20(1) of the Atomic Energy Act, 1962.[7]
Types of Patent Filing in India
Provisional Application
It is also known as a temporary application, which is filed when an invention is still in the works and has not been completed. If a patent is filed early, any other comparable innovations will not be classified as prior art to the inventor’s application. It is filed when an innovation needs more time for development.
Ordinary or Non-Provisional Application
This form of application has no precedence to claim or is not submitted in response to an earlier convention application. A comprehensive specification can be submitted via:
Direct Filing
The submission of a full specification with the Indian Patent Office without the filing of a matching provisional specification.
Subsequent Filing
When a full specification is filed after the matching provisional specification and claims priority from the provisional specification that was filed before.
Convention Application
A convention application is filed in order to claim a priority date based on a similar or identical application filed in any of the convention nations. To get convention status, an applicant must apply to the Indian Patent Office within a year following the first filing of a comparable application in the convention nation.
PCT International Application
While the PCT international application does not result in an international patent grant, it does open the way for a simplified patent application procedure in many nations at once. It is governed by the Patent Corporation Treaty, which can be approved in up to 142 nations. Filing this application prevents innovation from being copied in these nations. The priority date acquired by filing a PCT application is globally recognised and has an effect in all of the specified countries. It allows the application 30/31 months from the international filing date or priority date to enter various nations, giving the applicant extra time to examine the feasibility of the invention. It delays the costs of filing for a patent in several nations and provides an International Search Report identifying previous art, which indicates whether the invention is original and creative to the applicant. Moreover, it allows you to seek an International Preliminary Examination Report, which contains an opinion on the patentability of your invention.
The International Search Report and International Preliminary Examination Report enable the applicant to make more informed decisions early in the patent process, as well as to amend the application to deal with any conflicting material before the major expenses of the national phase of the patent process begins.[8]
PCT National Application
This application is filed if the applicant learns that he has discovered an invention or a small modification of an invention that the applicant has already applied for or patented. If the invention does not include a significant inventive step, a PCT National application can be filed.
Divisional Application
If a given application claims more than one invention, the applicant may opt to split the application and submit two or more applications. These applications have the same priority date as the parent application.
Procedure to File a Patent
The first step in obtaining a patent is to file a patent application with either a provisional or full specification. Because India uses a “file-to-file” system, the priority date is quite significant. After the patent application is filed, it is published after 18 months. The patent application is reviewed at the request of the applicant, and the examiner’s report is considered by the controller for further processing. Section 25(1) of the Act allows anybody to object to the award of a patent after it has been published but before it is granted. If no one objects, the patent is awarded to the patentee.[9]
Competence to File
A patent application is filed by the competent persons as already discussed above. However, if the applicant is not the same person, a declaration indicating that the applicant thinks the person thus designated is the real and the first inventor should be added to the application. An assignee’s application must include documentation of their legal authority to make the application. Except for convention applications and PCTDI applications, all applications must be accompanied by a tentative or full specification.[10]
In the case of an application submitted with a provisional specification, a complete specification must be filed within 12 months of the application’s filing date.
The 12-month term begins on the day the earliest preliminary specification is filed. If a complete specification is not filed, the application is deemed abandoned. Every specification, whether complete or preliminary, must explain the invention and must begin with a title that adequately identifies the subject matter of the invention.
Every entire specification must thoroughly define the innovations and their applications, as well as provide the optimum technique for carrying out the invention. A full specification’s claims should be clear and concise. A declaration of inventorship must be included in the full specification or submitted within the time frame provided.
Publication and Examination of Patent Application
Section 11A (1) of the Patents Act, as amended by the Patent Rules of 2003, specifies that no application shall be made public for 18 months from the date of filing of the patent application.[11] The aforementioned rule does not apply to any application in which: the secretary’s directive is enforced under section 35; the application has been abandoned, or The application was withdrawn three months before the three-month time stipulated under section 11A. (1).
Applications made under section 11-A must be published with the date and number of the application, the applicant’s name and address, and an abstract. When the application is published, the depository institution must make the drawings and specifications available to the public. Any biological materials specified should be made available as well. The patentee will enjoy the same advantages and rights as if a patent grant had been awarded as of the date of publication.[12]
Examination
An application for a patent will be investigated if the applicant or any other interested party requests it. The request must be submitted within 48 months of the priority date or the filing date of the application, whichever is later.[13] If no such request is made, the application is considered to be withdrawn.
When the controller receives a request for examination, he or she may refer the application and any relevant papers to an examiner, who must then issue a report within one month, not to exceed three months from the date of referral. The report is written with the following considerations in mind:
- Whether the application, specification and other documents meet the requirements of the Act and the Rules.
- Whether there are any legitimate grounds for objecting to the issuance of the patent under this Act is in line with the application.
- The outcome of the inquiry was conducted under Section 13.
- In any other way that may be recommended.[14]
Upon receipt of the report, the Controller must take the appropriate measures in line with the law. If the application and accompanying papers are in conflict with any sections of the law, the controller must notify the applicant and provide him with a chance to be heard, in accordance with the concept of audialtrempartem.[15] When someone files an opposition/objection, the controller, in accordance with Rule 55 of the Patents Act of 1970, follows the appropriate procedure.
Grant of the Patent
An application for a patent is approved if the Controller has not denied it or if it has not been found to be in violation of any of the Act’s requirements. The patent should be awarded to the applicant as soon as feasible, with the seal of the patent office and the date of grant.[16]
Where to File Patent Application?
There are patent offices in Delhi, Kolkata, Mumbai, and Chennai. The patent application must be filed in the relevant office based on the location of you or your organization. The Delhi office covers the states of Himachal, Haryana, Punjab, Rajasthan, Uttar Pradesh, Uttaranchal, Jammu and Kashmir, Delhi and Chandigarh. The Mumbai office has jurisdiction over patents coming from the states of Maharashtra, Gujarat, Madhya Pradesh, Goa, Chhattisgarh, Union Territories of Daman and Diu and Dadra and Nagar Haveli. The Chennai office covers most of the southern states that include the states of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Union Territories of Puducherry and Lakshadweep. While Kolkata Office covers the rest of India. E-filing can opt with requisite fees.[17]
Advantages of Filing a Patent
The innovator enjoys the following benefits after registering the Patent:
Exclusive Right
The benefits of patent registration begin to accrue to the inventors as soon as the patent application is filed. As soon as the applicant submits the Provisional Patent Application, he gains the assurance and security that no other person or corporation will claim ideas comparable to his invention. If someone else files for the identical patent, his request will be denied during the 12-month filing term in India.[18]
Freedom to Make Alterations
The patent law allows the owner to utilise his ideas in whatever way he wants during the duration of the patent. It means that the owner has complete freedom to use, sell, or even alter the original creation, as well as to prevent others from profiting from the same ideas without his permission. With the awarded patent, the inventor gains the right to sue any user who infringes on his patent rights. It is pertinent to note that patent infringement is a criminal offence in India.
Scope for Return of Investment
Sometimes the owner realises that his innovation isn’t working well for him and want to give it to another deserving or successful individual. Once secured, the patent rights enable him to make a significant ROI, or return on investment, by commercialising the innovation.[19]
Market Reputation
By disclosing the innovation publicly, the inventor has a visible market standing and expands his portfolio. It then assists him in developing positive relationships with customers and competitors, which eventually increases his income.[20]
Public Disclosure
Patent rights enable public exposure, which aids the inventor in expanding his portfolio while also boosting money, market value, and commercial partners. Sharing invention-related material publicly will demonstrate the inventors’ speciality and command of the technical subject matter. All of these factors assist the owner by recruiting top-tier investors, shareholders, business partners, and customers.
Conclusion
Patents serve an essential role in protecting inventors’ rights as well as promoting new innovations for the benefit of the general public, and as a result, the number of patents filed has increased significantly throughout the years. Individuals and businesses have found that patents give significant value and a higher return on investment. It requires a well-thought-out strategy that aligns corporate interests in order to adopt the technology.
However, it is believed to be confronting two problems in terms of its involvement in public policy, namely internal operations and external concerns. These difficulties are expected to have a significant influence on the whole patent process, necessitating the creation of a more sustainable and workable environment.
There’s a big difference between inventing something and explaining it. An invention registration is a detailed description of the innovation. Money, on the other hand, might be a stumbling block for the innovator. Keep in mind that the expense of submitting a patent application with a lawyer/patent service provider pales in contrast to the costs of producing and selling the innovation.
References:
[1]Patents WIPO https://www.wipo.int/patents/en/
[2]Shamnad Basheer, 2005, India’s Tryst with TRIPS: The Patents (Amendment) Act, 2005 Indian Journal of Law and Technology, Volume 1, 2005.
[3]Simran Kang, July 2021, A Study of Patent System in India: Patentability, Registration, Objection to the Grant of Patent, Academia.edu
[4]Ibid.
[5] V.K. Ahuja, Law Relating to Intellectual Property Rights, Student Edition, LexisNexis.
[6] (1979) 2 SCC 511.
[7]Supra Note 3.
[8]L.R. Swami Co. Types of Patent Application https://www.lrswami.com/page/types-of-patent-applications
[9]Supra Note 3.
[10] Supra Note 5.
[11]FeridAllani v. Union of India, 2008 (37) PTC 448 (Del.)
[12] Section 11A(7) Patents Act, 1970.
[13] Section 11B(1) Patents Act, 1970 r.w. Rule 24-B(1)(i) Patent Rules, 2003.
[14] Section 12(1) Patents Act, 1970.
[15] Section 14 Patents Act, 1970.
[16] Section 53 Patents Act, 1970 r.w. Rule 80 Patents Rule 2003.
[17]INVNTREE: Patents, Trademarks, Designs https://www.invntree.com/blogs/patent-application-filing-procedureprocess-india
[18]Supra Note 3.
[19]James Young, Patent Protection Benefits and Why Every Inventor Should Consider Getting One, OC Patent Lawyer.
[20]Supra Note 5.
0 Comments