What Is A Patent And Procedure For Obtaining A Patent
What Is A Patent And Procedure For Obtaining A Patent

 

INTRODUCTION

A patent is an integral part of a registered business in view of the fact that obtaining a legal right to a product, design or idea can add to the success of a business. Conversely, for small businesses, the process of obtaining patent maybe tedious. There are merits and demerits for obtaining patents. However, weighing the pros and cons will help you reach an awesome decision whether to seek for a legal protection for your product.

The concept of a patent is very important because someone or an organization may steal your intellectual properties without paying a royalty to you, hence the need by various governments to protect the right of an inventor. To this end, we will take you through the process of obtaining a patent in India, as well as, explained the necessary procedures, documentation, and the terms of the patent.

DEFINITION OF PATENTS UNDER SECTION-2(m)

Under section 2(1)(m) of the 1970 Patent Act of India, the term “patent” can be defined as a legal protection for any invention. In other words, a patent can be described as a legal right granted to an individual who is regarded as an “inventor” under this Act for any invention.

MEANING OF PATENT

A patent is that legal right that is granted by the government of a country to an individual or inventor with a view to excluding other people from selling, making or using the invention for a certain period of time. The essence of the patent system is to encourage product, design or ideas that are useful to the society.

BRIEF HISTORY OF THE INDIAN PATENT SYSTEM

The historical development of the patent system in India dates back to as far as the 18th century. For the purpose of this article, we will provide a brief summary of how the Indian patent system evolved from the 18th century to the present day Patent Amendment Act of 2005 which took effect from the 1st of January, 2005. The following highlights how the Patent system in Indian came to the fore;

  • The evolution of the patent system started in 1856 with the introduction of the Act VI to protect the interest of inventors. The Act VI of 1856 was derived from the UK’s 1852 Patent Law. At the time, inventors enjoyed certain privileges for the duration of 14 years.
  • 3 years later (1959), the Act VI of 1856 was modified to Act VX. This new Act was known as exclusive privileges.
  • In 1872, the Patterns and Designs Protection Act was introduced
  • In 1883, the Protection of Inventions Act was introduced
  • The Protection of Invention Act was consolidated in 1888 as the Invention and Designs Act
  • In 1911, the Indian Patents and Designs Act was promulgated
  • On the 26th of March 1999, the Patent Amendment Act was introduced
  • The 2002 Patents Amendment Act came to being
  • Then in 2005, precisely on the 1st of January, the current Patents Amendment Act came into force and was subsequently implemented.

ADVANTAGES OF PATENTS

The following are the benefits of obtaining a patent for your invention;

  • A system will stop other people from using, selling, making, importing, manufacturing or copying your invention
  • You will be protected for a specific period of time, thereby keeping your competitors at bay
  • You will be recognized in the society
  • You can make money by licensing your patent to whosoever wants to use your invention
  • Companies that want to use your invention will pay you royalty

DISADVANTAGES OF PATENTS

Despite its numerous benefits, the patent system has its own inherent drawbacks such as;

  • Making some technical information about your invention to go public during the process of application
  • Applying for a patent takes a lot of time – a lot of things may have changed before your application will be granted
  • Obtaining a patent will cost the inventor money whether the invention succeeds or not.
  • Your patent may lapse when you fail to pay the annual fee

PROCEDURE FOR OBTAINING A PATENT

In order for you to obtain a patent, you must send an application to the Indian Patent Office (IPO), fill out some forms and pay a prescribed fee. The following procedures detailed the process of applying for a patent;

Step 1: Write down a detail explanation of your invention

The detail explanation should include the following;

  • Area of invention
  • Description of the invention what it does
  • How does it work
  • Advantages of the invention
  • A copy of your laboratory record should be attached

Step 2: Include sketches, diagrams, drawings, and also explain the workings of your invention

The sketches and diagram should explain the working principle of your invention with visual illustrations

Step 3: Check whether your idea or invention is patentable

In India, not every invention is patentable. You need to be sure that your invention is patentable. Check here to confirm your invention.

Step 4a: Patentability search

After confirming whether your invention is patentable, the next step is to check whether you meet the Indian Patent Act criteria with respect to the following;

  • Novelty
  • Non-obviousness
  • Industrial application
  • Enabling

Step 4b: Make a decision whether to go ahead or not

The patentability search above will help you decide whether to carry on with your patent application or not. The search will save you money, time, effort, and make you decide quickly.

Step 5: Write your patent application

Ensure you write a professional application. In case, you are not good at writing application letters, you may contract this stage to a professional for a small fee.

Step 6: Publication of your application

After drafting your patent application, the application shall be published not later than 18 months of first filing. However, if you cannot wait until after the 18months expires, then you will have to make an early “patent application publication” request with a token. Generally, it will take at least a month for your patent application to be published after payment. The publication will include the following;

  • Application Number
  • Date of Filing
  • Title of Invention
  • Publication Date
  • International Patent Classification
  • Name and address of the applicant
  • Name of the inventor(s)
  • Priority details like priority document number, date, country etc.
  • Abstract
  • Number of Claims
  • Drawings (if any)

Step 7: Request for examination

Your patent application will be examined once you make an examination request (RFE). Once the controller receives your request for examination, he/she will assign a patent examiner to examine your application with respect to the following criteria;

, •    Patentable subject matter

  • Novelty
  • Non-obviousness
  • Inventive step
  • Industrial application
  • Enabling

The examiner will then compile a report and forward same to the Controller.

Step 8: Respond to objections

Based on the examination report, the issue of objection may arise. Once you are not satisfied with the report, you have the right to raise an objection after analyzing the report with some patent professionals.

Step 9: Clearing every objection

This is an opportunity for a patent applicant to communicate with the Controller. Use this opportunity to clear all objections. Otherwise, your patent application will not be approved. What this means is that all your effort would amount to a nullity.

Step 10: Grant of patent

Once your patent application has been found to have met all patentability criteria, the application would then be granted. The patent approval would be published in a patent journal.

COST OF PATENT REGISTRATION IN INDIA

Generally, there is no specific amount to the cost of obtaining a patent in India. This is because the cost depends on various factors. The best we can do is to give a range of cost. In India, there are about 2 elements that determine the cost of obtaining a patent. The two elements are;

  • Fees charged by the government for renewals, forms, and requests
  • Fees charged by Patent agents or professionals

The fees charged by the government for an individual applicant is different from the fees that a company would pay. Also, the patent application fee varies due to the number of the page of claims in your application. Therefore, so many factors have to be considered when talking about the cost of obtaining a patent.

In view of the above, to file a patent application, it would cost you between Rs. 45,000 to 65,000. We assume that you hired a patent professional for research, filing, and application writing for your invention.

WHERE TO FILE YOUR PATENT APPLICATION

The approved office to file your patent application is the Indian Patent Office (IPO). The patent office in India has 4 branches in Chennai, Mumbai, Kolkata, and Delhi. Each of the branches covers some states. You can walk into any of the offices closer to you to file your application. For foreigners seeking to obtain a patent in India, you must provide an Indian address showing the location of your business.

HOW LONG DOES IT TAKES FOR APPROVAL TO BE GRANTED?

Generally, it takes about 4 to 5 years for a patent application to be granted. This duration is after meeting all the patentability criteria.

TERM OF PATENT

Currently, in Indian, the term of a patent is about 20 years from your patent application filing date. This term is regardless of the fact that your patent application filing was done with a complete or provisional specification.

PATENT RENEWAL PROCESS

For your patent to be in force, you must pay renewal fee after the second year expires. To put it straight, you will be renewing your patent right every year until the 20 years terms elapse. You can pay the renewal fee beyond the due date.

CONCLUSION

The concept of a patent is very important because someone or an organization may steal your intellectual properties without paying a royalty to you. This is exactly why the government decided to protect the interest of inventors via the patent system. In India, the patent term lasts up to 20 years. Within this period, it is expected that you would leverage on the benefits that are inherent in the patent system to transform the society.

Therefore as an inventor or a potential inventor, it is important for you to understand the processes involved in obtaining a patent in India.

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