Wednesday, 26 January 2022

patent infringement by kanishq dhas

 Intellectual property is becoming the building block for the future humanity. Whether it be in IT sector, fashion industry, entertainment or science or whatever your imagination fancies, Intellectual property exists in every shape or form you can imagine. It could be a new application for your phone, new way of clothing, a new genre of music or some scientific invention to make everyone’s life a lot easier. It all comes under intellectual property, so what keeps it being used by any everyday Joe? This is where a patent comes in, a patent is a right given to a person by the government for an invention of his, to save him from being exploited financially by someone else for something he invented. Simple as that. A patent lasts for 20 years from the date of its filing. So only the owner of the patent can monetize his inventions and put them in the market. 

Grant of a patent is a long process that entails multiple checks on novelty, non- obviousness, and industrial applicability of the invention. A patent, granted by the government, gives an exclusive right to an inventor to make, use, and sell his invention. This exclusive right is for a limited period of 20 years from the date of filing. The fundamental idea is to safeguard the inventions that are created and therefore, encourage more developments. Let us look into the steps involved in a patent filing in India. 

  • Step 1: Conceiving your Invention :-

This is the first step for an inventor who wants to go ahead with his or her invention. It is important to collect as much information as possible. Some of the pertinent questions that the inventor must think through are: what is the field of the invention, what are the advantages, how will it help in improving already existing solutions? Not all inventions are patentable subject matter. Section 3 of the Patents Act provides those subject matter which are not patentable. Therefore, while conceiving, the inventor must be clear that the invention does not fall under any of such categories which are not patentable.

  • After getting clarity over the invention, the inventor must do a patentability search. This is important since it will help in understanding whether the invention is novel or not. All inventions must meet the novelty criteria under the Patents Act. The patentability opinion can be examined upon conducting an extensive search and forming a patentability report. The patentability search identifies the closest possible prior arts (known to the public) relating to the invention and based on the results obtained, an opinion about the patentability of that invention may be provided which can be positive, negative, or neutral. Nevertheless, one can choose to directly file the application, but a patentability search is highly recommended.

  • The next step which follows is effective drafting of the patent application. The application consists of various parts such as Claims, Background, Description, Drawing (if any), Abstract, and Summary. All such parts must be carefully drafted to provide effective disclosure of the invention. It is advised that utmost care and precision must be taken while drafting the application.

  • Step 3- Filing the Patent Application

This is where the actual process starts. After drafting the patent application, this can be filed in the government patent office as per the application form in Form 1. A receipt would be generated with the patent application number. One can also file a provisional patent application, in case; the invention is at an early stage under Form 2. The benefit of filing a provisional application is that one can secure a prior date of filing which is crucial in the patent world. Also, one gets 12 months to file the complete specification. In the case of start-ups and small entities, the application form in Form 28 must be used to file for patents.

  • Step 4- Publication of the Application

  • After filing the complete specification, the application is published after 18 months from the date of filing. There is no need for any special requirement from the applicant for publication. In case, the applicant does not want to wait till the expiry of 18 months, an early publication request can be made along with prescribed fees by filing Form 9. Generally, the patent application is published within one month from the request of early publication.

  • Step 5- Request for Examination

  • Unlike the publication, the examination is not an automatic process and the applicant is required to request the patent office to examine the patent application. The normal request must be filed within 48 months from the date of filing of an application, under Form 18. Upon such request, the controller gives the application to a patent examiner who examines it with different patentability criteria, which are novelty, non-obviousness or inventive step, and capable of industrial applicability thereby, providing the applicant with the First Examination Report (FER). 

  • Step 7- Grant of Patent

After addressing all objections, the application would be placed for a grant once it is found to be meeting all patentability requirements, and finally, the patent will be granted to the applicant. The grant of a patent is notified in the patent journal which is published from time to time.

    After all this once you have your patent, there will be challenges maintaining these are ideas flow like water in young minds and there’s bound to be someone out there who will try to copy your idea or might genuinely come up with the same one as yours, in such case a patent is said to have been infringed. The legal remedies for such an infringement are swift and easy. As long as you hold the patent you have nothing to worry about. Patent infringement is the violation of the exclusive rights of the patent holder. The Indian Patents Act 1970, (“Patents Act”) does not specifically define activities or situations that constitute patent infringement. Section 48 of the Patents Act gives the patent holder/ patentee an ‘exclusive right’ to exclude any third- party from making, using, offering, selling, manufacturing etc. The patented invention/ product/ process, during the valid term of the patent. This essentially creates monopolistic rights over the patented invention/ product/ process. Thus, any activity which violates such a monopoly can be considered a patent infringement.

     In cases of patent infringement, the patent holder has the right to sue the infringing party to get relief and compensation for the damage caused. Sections 104-114 of the Act provide certain guidelines relating to patent infringement such as the burden of proof, defenses, power of the courts, acts not amounting to infringement, reliefs, etc.  

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