INTRODUCTION
WHAT ARE PATENTS?
A patent is a form of intellectual property that gives its owner the legal
right to exclude others from making, using, selling, and importing
an invention for a limited period of years, in exchange for publishing
an enabling public disclosure of the invention.1
First it is important to define what an invention is as only inventions can
be patented. An invention is a new, inventive and industrially applicable
technical solution to a given technical problem.
When an invention is created, its author can apply for a patent to a Patent
Office. A patent is the legal document that describes the invention and
grants a property right to the inventor(s) or their successor(s).
Patents are a long-established means of encouraging innovation. This
property right confers to the holder the exclusive right of exploitation and
enables them to exploit the invention by manufacturing, using, or selling
products or processes incorporating the technology covered by the patent.
The owner may also allow the invention to be exploited by others over a
set period of time, in return for fair remuneration to compensate them for
the intellectual and material effort involved in its conception and
production
Patent protection provides the owner of the right with the means to
prevent unauthorised use of the protected technology, to defend their
rights in law and to initiate legal proceedings against any persons
fraudulently using the patented invention.
Exclusive right of exploitation is only applicable in the countries where
the patent has been registered as the rights granted under a patent can
only be enforced in the territory governed by state that issues the patent.
Another limitation to the rights granted by a patent is the duration. In
general the protection is limited to 20 years, depending on the country.2
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WHAT CAN BE PATENTED?
To be patented an invention should be new i.e. not a simple and obvious
extension of what existed before. Neither must it be obvious to people
skilled in the given technical field, but it must involve an inventive step.
Lastly, it should be useful or have an industrial application. An invention
cannot be solely theoretical but must have the potential to be put into
practice. For instance, if an invention forms part of a product or
constitutes the product itself, then the product must be capable of being
made.
Innovations falling into the following classes cannot be patented:
inventions contrary to law and order
discoveries, scientific theories, mathematical formulae
aesthetic creations, plans, principles and methods, rules of games
information, computer programs ‘as such’
animal species, plant or animal production processes
surgical or therapeutic methods of treating human or animal bodies
and methods of diagnosis
An important point is that prior disclosure of an invention means that it
cannot be patented. Therefore, if an invention has to be disclosed to a
third party, maybe in order to carry out experiments, the inventor should
first sign a confidentiality agreement with the third party before
disclosing information.3
WHY PATENT AN INVENTION ?
Patents are a long-established means of encouraging innovation. They do
this by
protecting the holder from the fraudulent use, sale or manufacture
of products or processes incorporating technologies developed by the
patent holder4
ensuring that inventions are made public, thus contributing to
scientific progress and promoting creativity and innovation by others
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preventing inventions that require high development costs from
being copied by competitors at no cost
providing a form of recognition for creativity
In the absence of legal protection inventors would tend not to divulge
their invention and to protect it through confidentiality or by making it a
trade secret. This would discourage further research as there would be
insufficient technical documentation available and for progress to be
made in a given field each person would have to reinvent the work done
by others. Neither would there be a reward for innovative creations of the
mind.
Patents are a judicious compromise between ensuring free access to
information and protecting the interests of inventors. In return for
granting a monopoly right of exploitation to a patent holder for a set
period of time, a state obliges an inventor to disclose their invention, by
publishing the patent application approximately 18 months after its
registration.
This system contributes to progress in the field concerned and to the
improvement of inventions and other intellectual achievements. Once an
invention has been disclosed, it can serve as a basis for research and be
improved upon by others.5
TYPES OF PATENTS
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Patents protect inventions and new discoveries that are new and non-
obvious. There are three types of patents: utility patents, design patents,
and plant patents. Each type of patent has its own eligibility
requirements and protects a specific type of invention or discovery;
however, it's possible for one invention or discovery to potentially have
more than one type of patent available for it. For example, if a person
invents an object and he or she wishes to patent both the functional
features and the design of the object, the inventor would have to apply for
two separate patents (both a utility and design patent). This article will
provide an overview of the three different types of patents available under
the laws of the United States, as well as a brief explanation of how to
obtain patent protection for your invention or discovery.
Utility Patents
A utility patent is the most common type of patent that people seek. This
type of patent covers processes, compositions of matter, machines, and
manufactures that are new and useful. A utility patent can also be
obtained for new and useful improvements to existing processes,
compositions of matter, machines, and manufactures. Processes refer to
any acts or methods of doing something, usually involving industrial or
technical processes. Compositions of matter are basically chemical
compositions, which can include a mixture of ingredients or new
chemical compounds. Machines include things that are generally defined
as a machine, such as a computer, while manufactures are defined as
goods that are manufactured or made.
Design Patents
In terms of obtaining a design patent, a design is defined as the "surface
ornamentation" of an object, which can include the shape or configuration
of an object. In order to obtain this type of patent protection, the design
must be inseparable from the object. While the object and its design must
be inseparable, a design patent with only protect the object's appearance.
In order to protect the functional or structural features of an object, a
person must also file for a utility patent.6
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Plant Patents
A plant patent can be obtained to protect new and distinctive plants. A
few requirements to obtain this type of patent are that the plant is not
a tuber propagated plant (i.e. an Irish potato), the plant is not found in an
uncultivated state, and the plant can be asexually reproduced. Asexual
reproduction means that instead of being reproduced with seed, the plant
is reproduced by grafting or cutting the plant. Plant patents require
asexual reproduction because it's proof that the patent applicant can
reproduce the plant.7
PATENT RIGHTS IN INDIA
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The Patent system in India is governed by the Patents Act, 1970 & The
Patents Rules 1972.
IT an exclusive right granted for an invention that provides a new way of
doing something, or offers a new technical solution to a problem. It is a
statutory right granted for a limited period of time to the person by the
Government for an invention, in exchange of full disclosure of his
invention and excluding others from making, processing, using, selling
the patented product without his consent.
A patent is a grant by the India patent office. Through this the patent
owner maintains a monopoly for a limited period of time on the use and
development of an invention.
For an invention to be patentable it should meet the following criteria –
i) Novelty i.e. some part of it has a new development and has not been
published in India or elsewhere before the date of filing of patent
application in India.
ii) Inventive Step: If someone who was skilled in that particular field
would consider the invention to be an unexpected or surprising
development on the invention date
iii) Industrial Applicability: Invention should be useful, such that it can
be used in an industry.8
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PROCEDURE FOR PATENT REGISTRATION
Patent Documents can be filed either through online or at the patent office in
respective jurisdiction: Kolkata, Delhi, Mumbai, and Chennai.
For online filing
Pre-requisite – Login ID & Password; Digital Signature ,Valid
Debit/Credit/Net Banking facility for transaction.
E-Filing Procedure
1. Form 1
2. Provisional/Complete specification in Form 2
3. 3 Description Claims
4. Drawings (in pdf format);
5. Figure of Abstract (in jpg format)
6. Statement and Undertaking in Form 3
7. Power of Attorney in Form 26)
8. Declaration of Inventorship in Form 5
9. Form 28 (in case the applicant is a small entity);
10. Letter/documentary proof to prove the small entity status (if
any);
11. Certified true copy of the Priority document (in case priority is
claimed) in original, to be submitted within 6 months of filing the
Application;
12. Priority Details
STATUTORY FEES
In case of Natural person- 1,600
In case of small entity- 4,000
In case of large entity- 8,000
PUBLICATION: A patent application will be published automatically in
the official journal after expiry of 18 months from date of filing of the
application containing title, abstract, application no. and name of
applicant.9
Statutory fees-
In case of Natural person- 2,500
In case of small entity- 6,250
In case of large entity- 12,500
OPPOSITION (IF ANY)
Pre grant Opposition – Upon publication but before the grant of patent, any
person, on different grounds may file a pre grant opposition, in writing,
represent by way of opposition to the Controller against the grant of patent.
However the opposition will be taken by the patent office only after the filing
of Request for Examination. It may be filed within 3 months from the date of
publication of the application.10
Post grant Opposition -Upon grant of patent any interested person, on
different grounds may file a post grant opposition to the Controller against
the grant of patent. Time limit: Within one year after the grant of a patent.
REQUEST FOR EXAMINATION: No Request, No Grant In Form 18 within
period of 48 months from date of filing or priority, whichever is earlier.
FIRST EXAMINATION REPORT: After proper examination of patent
application on the criteria of novelty, inventiveness and industrial application,
the Patent Examiner will issue a First Examination Report (FER) and will send
along with the application and specification to the applicant or authorized
agent.
AMENDMENT OF OBJECTIONS BY THE APPLICANT: The issued FER give
an opportunity to the applicant to file a response and overcome the
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objections raised by the Examiner. Time limit: Within 12 months from the
date on which the First Examination Report has been issued to the applicant.
GRANT OF PATENT: After all objections to the examination report have
been compiled and the examiner is satisfied with the reply of an
applicant, the application is put in order for grant. On the other hand, if
the examiner is not satisfied with the reply and arguments of an applicant,
then he/she can reject the application11
CONCLUSION
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