Chapter 2 Patent

Definition: patent is an exclusive right given for an invention for a limited period of time in exchange or full disclosure of his invention.


Patentability requirements

  • Invention should have an industrial application.
  • Invention should be novel.
  • Invention should have an inventive step.
  • Invenrtion should be directed to patentable subject matter.

Non-patentable inventions:

  • Inventions that contrary to natural laws.
  • Inventions that are contrary to public order or morality.
  • Discovery of living or non-living things in nature.
  • Discovery of new form a substance.
  • Substance obtained by adding or mixing substances.
  • Arrangement or re-arrangement of known devices.
  • Method of agricilture.
  • Any process for medicinal, surgical, curative, prophylactic, therapeutic or other treatment techniques.
  • Plants or animals, part or whole body.
  • A mathematical or business model.
  • Literary, dramatic, musical or artistic work.
  • Presentation of information.
  • Traditional knowlwdge.
  • Invention relating to atomic energy.

Patent Procedure

  • Filing
  • Request for Examination
  • Publication
  • Examination
  • Opposition- Pre Grant and Post grant

Filing

Application for a patent by a person who is the first inventor of the invention or assignee of the true or first inventor.

In India patent office has four branches, they are Delhi, Mumbai, Kolkatta, Chennai. Patent from perticular geographical area can be filed only in specific branch office.

There are two types of filing

  • Provisional filing
  • Complete Application

Provisional filing is a prelminary application before filing complete application. It is not mandatory but it benefits the inventor. It gives the applicant 12 months to file complete application and to secure a priority date.

Complete filing is an application for a patent that is complete in all respects. It consists of detailed description regarding the invention.

Parts of complete application

  • Title
  • Preamble of the invention
  • Technical field
  • Background of the invention
  • Objects of the invention
  • Statement of the invention
  • Brief description of the drawings
  • Detailed description of the invention
  • Claims and
  • Abstract.

Request for Examination

It is a mandatory requirement, is filed when applicant wants his application to be examined by Indian Patent Office. Unless the Request For Examination is filed Indian Patent Office does not takes up the application for examination.

Publication

A patent application gets published on expiry of 18 months from priority date. Applicant commences his rights for his invention from date of publication. It also gives opportunity to oppose the grant of patent.

Examination:

Examination of application is done by controller in co-ordination with patent examiner. Upon receiving the application examiner reviews the application and makes report that the application satisfies patentability requirement, whether form of application and specification are in accordance with requirements of Patent Act and Rules.

Opposition Pre-Grant and Post Grant

Once the application is published it is open for public to oppose the patent application. Pre-grant opposition can be filed at any time before grant of patent.

Various reasons for pre-grant opposition can be:

  • Invention is obtained wrongfully.
  • Lack of inventive step.
  • Non patentable subject matter.
  • Lack of invention description.
  • Invention is already published in India or anywhere on the earth.
  • Invention is a traditional knowledge.

Post-grant opposition may be filed by a person after grant of patent.


Rights of a Patent Holder

  • Owner may exclude others from making, using, selling and importing invention
  • Owner owner has the right to sell or assign the patent.
  • Owner has the right to surrender the patent.
  • Owner has the statutory right to seek legal proceedings for infringement of patent.

Limitations

Use for government purposes

Any patented product can be used by or on behalf of the government for its use. It can be used by Central or State government or government undertakings.

Incase of medecines, it can be imported by government for its own use or distribution.


Further Reading