Overview
The objective and purpose of patent law is to encourage scientific research, new technology and industrial projects. Grant of exclusive rights to own, use or sell the method or the product patented for a limited period stimulates new invention of commercial utility.
The fundamental principle of Patents Act, 1970 is that the patent is granted for that invention which is new and useful. It must have the novelty and utility. It is essential for the validity of the patent that it must be the investor’s own discovery as opposed to mere verification of what was already known before the date of patent.
Patents Act, 1970 was made to protect Indian drugs, pharmaceuticals, chemical industries and Indian agriculture from foreign competition. In some cases only process can be patented but product cannot be patented i.e., in cases where only process is patentable, manufacture of that product by different process by another person is not an offence under the Patents Act, 1970.
Meaning of Patent
Patent means a patent granted under the Patents Act, 1970.
Patents is a grant from Government which confers on the grantee, for limited period of time, the exclusive privileges of making, selling and using the invention for which patent has been granted and also of authorizing others to do so.
A patent is a contract between the society as a whole and individual inventor. The inventor gets the exclusive rights to prevent others from making, using selling a patented invention for a fixed period of time, in return for the investors disclosing the details of invention to the public. In this way, inventor is rewarded for his/her endeavours and he is encouraged to disclose the benefits arising out of his/her invention. Patent rights are granted only to new inventions capable of industrial application. The document in the prescribed form duly signed by the concerned authorities and seal is called the patent. A patent right is a property which can be bought, sold, hired or licensed.
Patent Search
Patent search is done to verify the uniqueness of your invention. Patent can’t be similar or same to any other patent. Patent search can be done by yourself but you need to be skilled and attentive. A patent search typically deals with search, research, and data mining. It includes a search of the database of the intellectual property regulator of India to verify whether an already existing object or invention is either identical or similar to the applicant’s invention.
Importance of Patent search
- Checking validity of patent.
- Helps to know about similar inventions done.
- Helps in saving money and time.
- Provides freedom to operate independently.
What can be patented?
Any “invention” may be patented.
“Invention” means new product or process involving an “inventing step” and “capable of industrial application”.
“Inventing Step” means a feature that makes the invention not obvious to a person skilled in that art.
“Capable of Industrial Application” in relation to invention means that the invention is capable of being made or used in the industry.
Thus, “Patentable Invention” is an invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However it must not fall in to the categories of inventions that are non-patentable under section 3 and 4 of the Patents Act, 1970.
What cannot be patented?
Anything, which is not an invention, cannot be patented.
Patents Act, 1970 provides that the following shall not be covered under the concept of invention:
- If its use is contrary to law or morality.
- Mere discovery.
- Aggregation of properties by mere mixture of 2 or more things.
- Re-arrangement or duplication.
- A method of agriculture or horticulture.
- Any process for the medical, surgical, diagnostic or other treatment of human beings or animals.
- Plants and animals other than micro-organisms but including seeds, spices, and other biological processes.
Advantages of filing provisional patent
- Legal Protection
- Global patent protection
- 20 years validity
- Competitive edge
- Creation of asset
Important points to be kept in mind
- Fees is mentioned in First schedule of the act and additional of 10% of fees is there for physical application.
- The fees are to be paid to the appropriate office via appropriate channels to the Controller of Patents.
- The fee relating to the document shall be accompanied with the document.
- In case of transfer of application, the amount has to be paid by the new applicant to the old one.
- Fees are non-refundable, with few exceptions.
Documents/Documents required
- Form 1 (Application for grant of patent)
- Form 2 (Provisional Specifications)
- Form 5 (Declaration of Inventorship)
- Form 26 (Power of Attorney). If your patent is filed by a Patent Agent then this form is necessary.
- E-filing fees (Patent Statutory fee)
- Form 3 (Corresponding foreign patent application statement and undertakings)
- Priority Document (This is used for convention applications if priority date is claimed)
- Illustrations/Drawings of the invention
Types of patent applications in India
- Ordinary application: This type of application is carried out when there are no applications or references to any other application under process in the Indian Patent office. The priority date and filing date are the same for an ordinary application.
- Conventional application: If an inventor has already filed a patent in another country and now wishes to do the same, then this comes under a conventional application. It is mandatory to file the application for an Indian patent within 12 months of first filing it.
- PCT International application: PCT International application lets you file the patent application in multiple countries, and you can file it in up to 142 countries. It could take between 30-31 months from the international filing date to enter and claim protection in each country.
- PCT National phase application: You can file this application within 31 months from the international filing date.
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