How to Obtain a Patent in India: Procedure of obtaining a Patent in India
The Indian law of patents is enriched in the Patents Act, 1970. The Act seeks to provide for legal protection for inventions. The rights granted under the Act, are operative in the whole of India.
What is Patent?
A patent is an exclusive monopoly granted to an inventor over his invention for limited period of time. It provides an enforceable legal right to prevent it from others exploiting and inventions.
Object of the Patent Law:
The object of the patent law is to provide a statutory right to owner of the patent for a certain period of time and disclose invention to use it and practice that invention and make it work thus encourage scientific research and new technology, stimulate new inventions of commercial utility and pass invention into public domain after the expiry of fixed period of the monopoly.
India is one of the countries party to the Paris Convention so the right of priority are applicable. The applicant may within the six months apply for protection.
Rights conferred by Registration:
Patent represents one of the powerful intellectual property rights. The registration of a patent confers on the patentee the exclusive right to use, manufacture or sell his invention for a particular period of time of patent. It means that the invention can’t be commercially made, used, distributed, sold without the consent of patentee’s. The patent rights can usually be enforced in a court of law.
Who can apply:
- Any person claiming true and first inventor of the invention.
- Any person being the assignee of the person claiming to be true and first inventor in respect of the right to make such application.
- Any legal representative of the deceased person who before his death entitled the research of the patent to another person through legal procedure.
- It is prudent to conduct searches as early as possible to avoid spending time and money reinventing a known matter. A patent is not granted to an invention if it is already available with the public either in the form of published literature or common knowledge.
To be patentable, an invention must in general, satisfy the certain criteria. The invention must be of industrial applicability, must be new and must show an inventive step which could not be deduced by a person reasonably skilled in the field. Above all, its subject matter must be accepted as “patentable” under law. As for example, Inventions which are frivolous or claim anything contrary to well established natural laws are not patentable. There are also other specific categories of inventions which are declared as non-patentable.
The process of patenting typically involves conducting prior art searches to distinguish the invention and develop a description that illustrates the best method of working the invention. The description of invention is called specification. Depending upon the sufficiency of description a specification may be either provisional or complete specification.
Provisional and complete Specification:
- A provisional specification is often the first application filed in respect of an invention, and usually contains only a brief description of the invention.
- It need not contain claims. Compared with the provisional, the complete specification contains the full description of the invention, and the best method of making the invention work.
- The complete specification comprises a title , field of invention, the background of the invention, the description of the related art, drawbacks of the prior art, the summary of the invention, the brief description of the figures, the detail description of the preferred embodiments, claim and abstract.
- Complete specification must be filed with 12 months from the date of filing of the provisional specification. Claims are the most important component in the patent specification as it is the legal operative part which define and determine the legal protection sought for. The extent of the patent protection for an invention shall be determined by the terms of the claims.
- The description and the appended drawings may be used to interpret the claims.
Filing and Prosecuting Patent Applications:
- The procedure for the grant of a patent starts with filing of the patent application along with the prescribed fees at the patent office followed by filling of request for examination in the prescribed format, after the publication of the application.
- The applications are examined substantively and a first examination report stating the objections is communicating to the applicant. Applicant may be amended in order to meet the objections.
- If the applicant doesn’t comply with the objection, the application can be abandoned.
- After complying off the requirements the application is published in the official journal. At that time the opposition is can be filled on limited grounds, but hearing is not mandatory.
- Patent will be granted if the application is founded to be in order, then the applications and other document will be open for public inspection.
- Thereafter, at any time after the grant and before the expiry of a period of one year from the date of publication opposition on substantive grounds is available.
- The whole process typically takes at least two years.
Duration of Patent:
The tenure for patent is 20 years from the date of filling of the application for the patent before the patent office. It is responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the public domain.
Restoration of a patent that lapses due to non-payment of renewal fees can be made within one year of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is restored.
Information required for Patent Registration:
- Name and address of the applicant.
- Complete Specification.
- Power of Attorney
- Priority documents (if any).
There is no international or world 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 seek protection like Patent co-operation Treaty (PCT) or European Patent Convention(EPC).