Legislation

Indian patent law is enshrined in the Patents Act, 1970. The Act seeks to provide legal protection for inventions. The rights granted under the Act are in force throughout India.

what is a patent

A Patent is an exclusive monopoly granted by the Government to an inventor over his invention for a limited period of time. Provides an enforceable legal right to prevent others from exploiting an invention. Invention, as defined in the Law, means a new product or process that implies an inventive activity and is capable of industrial application.

Rights conferred by registration

Patents represent one of the powerful intellectual property rights. Registration of a patent confers on the patent owner the exclusive right to use, make, or sell his invention for the term of the patent. It means that the invention cannot be manufactured, used, distributed or sold commercially without the consent of the patent owner. Patent rights are generally enforceable in a court of law.

Who can apply for a patent

An inventor or any other person/company appointed by the inventor can apply for and obtain the patent on the invention. The inventor or the assignee thereof obtains a patent by filing an application at the corresponding office of the patent office in the forms and fees stipulated as required by Law.

Patent Search

It’s wise to search as early as possible to avoid spending time and money reinventing a familiar topic. A patent is not granted for an invention if it is already available to the public, either in the form of published literature or common knowledge.

Patentable inventions

To be patentable, an invention must, in general, satisfy certain criteria. The invention must be of industrial applicability, it must be new and it must show an inventive step that cannot be deduced by a person reasonably trained in the matter. Above all, your object must be accepted as “patentable” under the law. As for example, inventions that are frivolous or aim at something contrary to well-established natural laws are not patentable. There are also other specific categories of inventions that are declared unpatentable.

patent specification

The patenting process generally involves searching the prior art to distinguish the invention and developing a description that illustrates the best method of working the invention. The description of the invention is called the specification. Depending on the sufficiency of the description, a specification may be an Interim or a Full Specification.

Provisional and complete specification

A provisional specification is usually the first application filed for an invention, and typically contains only a brief description of the invention. It does not need to contain affirmations. Compared to the Provisional Specification, the Full Specification contains the full description of the invention and the best method of making the invention work. The full specification includes a title, field of invention, background of the invention, description of related art, drawbacks of prior art, summary of the invention, brief description of figures, detailed description of preferred embodiments, claims and abstract. The full specification must be submitted within 12 months from the date of submission of the provisional specification.

The claims are the most important component in the patent description, since it is the legal operative part that defines and determines the legal protection sought. The scope of patent protection for an invention will be determined by the terms of the claims. The accompanying description and drawings may be used to interpret the claims.

Filing and processing of patent applications

The procedure for granting a patent begins with the filing of the patent application together with the prescribed fees at the corresponding office* of the patent office followed by the filing of the application for examination in the prescribed format (current deadline of 36 months), after the publication of the request. Currently, the patent application is not open to the public for 18 months from the filing date or the priority date, although the applicant may request earlier publication. Applications are examined in substance and a first examination report indicating objections is provided to the applicant. The request may be modified to meet objections. Normally, all objections must be met within 12 months from the date of the first examination report. If the applicant fails to meet the objection, the application will be abandoned. Once the requirements are met, the request is published in the Official Gazette. At that time, the opposition can be filed on limited grounds, but the hearing is not required. The patent will be granted if the application is determined to be in order. The application and other related documents will then be open for public inspection. Thereafter, at any time after the grant, but before the expiration of a period of one year from the date of publication, opposition on the merits is available. The entire process usually takes at least two years.

duration of a patent

The term of patents is 20 years from the filing date of the patent application. It is the responsibility of the patent owner to maintain an issued patent by paying annuities until the patent expires. After 20 years of validity, the invention claimed in the patent passes into the public domain.

Restoration

Restoration of a patent that expires due to failure to pay renewal fees can be done within one year of expiration. However, certain limitations will be placed on the rights of the patent owner when the patent is reinstated.

Remedies for infringement

It is the sole responsibility of the patent owner to ensure that their patent is not infringed. It is the duty of the patent owner to file an infringement lawsuit against the infringer. The reliefs that can generally be granted in such a lawsuit are:

I. We will either interim or final injunction.

ii. Losses or profit account.

International Patent Protection

There is no international or worldwide 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 apply for protection, such as the Patent Cooperation Treaty (PCT) or the European Patent Convention (EPC).