Patent law has been formulated with an objective to promote and protect the inventions and methods. The object of granting a patent is to encourage and develop science, technology and industry.
A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time. The exclusive rights conferred include the right to make, use, exercise, sell or distribute the invention in India. The term of a patent is twenty years, after the expiry of which, the invention would fall into the public domain.
Hierarchy of Officers in Patent office
Controller General of Patents, Designs, Trademarks & GI
Examiners of Patents & Designs
Assistant Controller of Patents & Designs
Deputy Controller of Patents & Designs
Joint Controller of Patents & Designs
Senior Joint Controller of Patents & Designs
Patentable Inventions:
A patent can be granted for an invention which may be related to any process or product. The word “Invention “ has been defined under the Patents Act 1970 as amended from time to time.
“An invention means a new product or process involving an inventive step and capable of industrial application” (S. 2(1)(j))
“ new invention” is defined as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art; Where, Capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry
(S.2 (1)(ac)) Therefore, the criteria for an invention to be patentable are,
(1) An invention must be novel
(2) has an inventive step and
(3) is capable of industrial application
To be patentable, an invention should fall within the scope of patentable subject matter as defined by the patent statute. The invention must relate to a machine, article or substance produced by manufacture, or the process of manufacture of an article. A patent may also be obtained for an improvement of an article or of a process of manufacture. With regard to medicine or drug and certain classes of chemicals no patent is granted for the product itself even if new, only the process of manufacturing the substance is patentable. However, product patents would be available for drugs and food materials from 2005 as India’s obligations under the TRIPs Agreement would kick in from that point of time. If any substance falls outside the scope of patentable subject matter, it cannot be patentable.
Utility
A patent can be obtained only for an invention which is useful. A patentable invention should have utility, which implies the inventor should show some sort of usefulness to the society. It will be patentable even if it is useful to a minor portion of society or sometimes only to a single individual.
Novelty
The invention claimed must be novel indicating that it should be new at the time of conception. Novelty of invention must be considered in the light of prior art. Prior art means the technology that that is relevant to the invention and was publicly available at the time the invention was made. It includes prior specifications, patents, printed and published literature and other materials related to the invention. An invention is not novel if it can be anticipated in the light of prior art.
Obviousness
An invention should also not be obvious to a person having ordinary skill in the art to which it relates. If the invention is obvious and does not have any inventive step, it is not patentable. Existence of a prior publication of the invention in any Indian specification or in any document in India or elsewhere or public use of the invention would make an invention obvious. In order to be ineligible for a patent, an invention should be obvious at the time of conception of the invention and not at the time of contention of obviousness.
Specification
Specification is an essential part of a patent. It should consist of the subject-matter, description and at times including the drawing of the invention indicating its scope. The specification has to enable a person with ordinary skill in the art to practice and use the invention. It should also describe the best mode of performing the invention.
Various types of Patent Applications in India
1. Ordinary application
2. Convention application
3. PCT international application
4. PCT National phase application
5. Application for Patent of addition
6. Divisional Application
Procedural requirements
An application for a patent in the prescribed form along with the prescribed fee has to be filed in the appropriate patent office. Examiners of patents scrutinize the application accompanied by a specification so that it satisfies the requirements. After examination, the Patent Office will raise objections and once the applicant convinces the Controller Of Patents will put the specification in the Official Gazette and on its acceptance without any controversy, a patent shall be granted.
A patent grant gives the patentee the exclusive right to make or use the patented article or use the patented process by preventing all others from making or using the patented article or using the patented process. The patentee can assign, grant licenses or deal for consideration.
The patent application passes through the following stages:
FILING
An application for a patent can be filed by the true and first inventor. It can also be filed the by the assignee or legal representative of the inventor. If an application is filed by the assignee, proof of assignment has to be submitted along with the application. The applicant can be national of any country.
Form of Application
Every application shall be accompanied by a provisional or complete specification. Provisional applications are generally filed at a stage where some experimentation is required to perfect the invention.
Filing of a provisional specification allows the applicant to get an early application date.
A Provisional Specification shall contain:
a. Title,
b. Written Description,
c. Drawings, if necessary and
d. Sample or model if required.
The complete specification shall contain:
a. Title,
b. Abstract,
c. Written Description,
d. Drawings (where necessary),
e. Sample or Model (if required by the examiner),
f. Enablement and BestMode,
g. Claims and
h. Deposit (Microorganisms)
a. Title
Title is generally a word or a phrase indicating the content of the invention.
b. Abstract
It is a short paragraph describing the invention in a precise manner.
c. Written Description
This is an important part of the specification. It contains the complete and elaborate description of the invention.
Written Description generally starts with a background of the invention. The written description explains the invention clearly and comprehensively, with the help of examples, drawings and models, where and when required.
d. Drawings
The written description might be supplemented with drawings, where and when required. The drawings should be clearly labeled.
e. Samples or Models
On initiative of the inventor or when required by the patent examiner samples or models might be submitted to the patent office. Such samples or models will provide a better understanding of the invention.
f. Enablement and Best Mode
The applicant has to enable his invention in order to allow a person with ordinary skill in the art to make and work the invention. He should not only enable, the applicant should also describe the best mode of carrying out the invention.
g. Claims
Claims define the metes and bounds of the invention. They are the most important elements in a specification.
h. Deposit
If an invention involves microorganisms, which cannot be described by writing. A sample of the microorganism has to be deposited at an internationally recognized depository. There is an internationally recognized depository at Chandigarh
A provisional specification cannot be filed if an application has been filed in a foreign country (Convention country) before the Indian filing and if the application is a PCT application. A complete specification has to be filed within twelve months (extendable to fifteen months) of filing the provisional specification. Each specification should contain only one invention. If there is more than one invention in a specification, separate applications have to be filed for each invention.
3. Priority Date
Priority date is the date of first filing allotted by the patent office to an application. If a provisional application is followed by a complete application, the priority date shall be date of filing of the provisional application. If an Indian application is filed after a foreign or PCT application, the priority date shall be the date of filing of the foreign or PCT application. If an application is divided into two applications, the priority date shall be date of filing of the parent application.
Priority date is the date of reference used by the patent to determine the newness of the invention. If the claimed invention is part of public knowledge before the priority date, it will not be eligible for a patent. Under US Law, priority date is pushed back to the date of conception for determining novelty and Non-obviousness.
Request for Examination
The process of examination starts with a request for examination. The request has to be made within 36 months from the date of priority or filing. However, if secrecy directions have been given for the application, the request can be made six months after the directions are revoked or thirty six months from the date of priority or filing, if that date is later.
GRANT
If the application satisfies all the requirements of the patent act, the application is said to be in order for grant. An application in order for grant shall be granted expeditiously. A granted patent shall be published in the official gazette and shall be open for public inspection. Every granted patent shall be given the filing date. The patent will be valid throughout India. A granted patent gives the patent holder the exclusive right to make, use, sell, offer for sale and import the product or use the process. However, the government can make use of the patent for its own purposes or for distributing an invention relating to medicine to hospitals and dispensaries. Furthermore, any person can make use of the patent for experiment or education.
Patent Law India - To learn more about this author, visit Kaviraj Singh's Website.
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Kaviraj Singh
(Visit Kaviraj's Website)
Kaviraj SIngh is the founder attorney of
Trustman & Co – A Law Firm at Delhi India
for patent, patent PCT application filing
real estate Intellectual property right,
prior art search, validity search,
corporate law company formation/
incorporation/ registration international
trade trademark real estate debt
collection credit report due diligence
legal risk business law foreign direct
investment approval / permission to set up
business/ company legal outsourcing LPO
Mr. Singh is a member of New York State
Bar Association, Intellectual Property
Right Section of New York State bar
Association, Supreme Court of India Bar
Association and Association of Trial
Lawyers of America, Bar Council of Delhi.
www.trustm
an.org
www.delhila
w.firm.in/patent_intellectualpropertyright
.htm
www.delhilaw.firm
.in/articlenews/patentlawindia.htm
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