How do I apply for a patent in India?

How do I apply for a Patent in India?

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Patent is another important IPR which provides protection to new Inventions. The object to grant patent is not only to encourage inventions but also to secure that the inventions are worked on a commercial scale to the fullest extent. So that it is reasonably practicable without undue delay. Patent is granted not only to enjoy a monopoly over the article. The basic requirement for the grant of Patent is the novelty and utility of the invention.

The Patents for inventions in India are governed by the Patents Law Act, 1970 and the Patents Rules 2003. The patents granted under the Act are operative in the whole of India. Section 2(1)(j) of the Act defines invention as to mean a new product or process involving an inventive step and capable of Industrial application.

FAQ

  1. What is a Patent?

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.

 

2. What may be patented?

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.

Note: No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of Section 20 of the Atomic Energy Act, 1962.

 

3. What are the criteria of patentability?

An invention to become patentable subject matter must meet the following criteria –

i)  It should be novel.

ii) It should have inventive step or it must be non-obvious 

iii) It should be capable of Industrial application.

iv) It should not fall within the provisions of section 3 and 4 of the Patents Act 1970. 

 

4. Types of Patents –

Three types of Patent are granted under the provisions of the Act, namely:

An ordinary Patent

A patent of addition for improvement in or modification of an invention for which patent has already been applied for or granted. A patent of addition remains in force only as long as the patent for the original invention remains in force. No renewal fees are payable in respect thereof. In case revocation of patent, the patent of addition may be made as independent patent by the authority ordering the revocation. The Patent will continue thereafter for the unexpired terms of the original patent subject to the payment of the prescribed renewal fees.

Under Patent Cooperation Treaty (PCT) – Granted on reciprocal basis in respect of the inventions made and/ or patented outside India but in the convention country. For this a convention application is required to be made within prescribed period from the date of the first application made in a convention country.

 

5. Term of Patent?

Term of every patent in India is 20 years from the date of filing of patent application, irrespective of whether it is filled with provisional or complete specification.  However, in case of applications filed under PCT the term of 20 years begins from International filing date. The Patent may be renewed from time to time for another period of 20 Years.

 

6. Does Indian Patent give protection worldwide?

Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries. This should be filed within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.

 

7. Who may apply for a Patent Registration in india?

  1. An application for an ordinary Patent may be made by any person claiming to be the true and first inventor of the invention or his assignee. A company or a firm cannot be named as the ‘true and first inventor’, however the term ‘person’ includes the Government.
  2. An application for a Patent registration of Addition may be made only by the applicant for the original Patent to which it is an addition, if the application for the main patent registration is pending; or by the patentee of such main patent, if it has been granted.
  3. A convention application may be made by any person who has made an application for a patent registration in respect of that invention in a convention country or by his assignee or his legal representative.
  4. For the persons employed in Government Service, there are certain special provisions restricting their right to file patent application under certain circumstances.

 

8. Inventions for which only processes of manufacture are patentable?

Inventions claiming substances intended for use or capable of being used, as food or as medicine or drug, or

Inventions relating to substances prepared or produced by chemical processes (including alloys; optical glass, semi-conductors and inter-metallic compounds); patent will not be granted in the claim for the substances. But the claims for the method or processes of manufacture shall be patentable.

 

9. Infringement of patents?

Infringement of patents means violation of the monopoly rights to make, use, exercise, sell or distribute the articles manufactured in accordance with the patented process. in case of infringement burden of proof lies in the defendant.

 

10. What is Patent Co-operation Treaty (PCT)?

The PCT is an agreement for International Cooperation in the field of patents aiming at the rationalization, cooperation and simplification of the procedure with respect to the filing, searching and examination of patent applications and dissemination of the technical information & contents therein. The process for filing of application in various countries of the world is simple now hence results in excellent cost benefits, effectiveness and simplicity.

The PCT system establishes an international system which enables the filing, with a single patent Office (the “receiving Office”), of a single application (the “international application”) in one language. It has different aspect in each of the countries, who are party to the PCT, and which the applicant names (“designates”) in his application. Although, The PCT does not provide for the grant of International Patent and till date there is no authority which can grant an International Patent. In addition, the patent rights are still a subject matter governed by the local laws of each and every country under the PCT system.

PCT provides for the formal examination of the international application by a single patent Office which results in an report citing the relevant prior art (mainly published patent documents relating to previous inventions) which may; have to be taken into account in deciding whether the invention is patentable. Thereafter, the report is made available first to the applicant and is subsequently published also.

 

11. Check List of Information & Documents required for apply Patent registration application in India –

  1. Name and address of the applicant;
  2. Power of attorney;

 

For more details about registeration of Trademark and its compliances, Please feel free to get in touch with us at [email protected] or call us today at +91 11 4604 5777.

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