Friday, 11 February 2022

Patent rights in Indian Legal System

 PATENT RIGHTS IN INDIAN LEGAL SYSTEM


INTRODUCTION: 

A patent is an exclusive right granted by the Government to the inventor to exclude others to use, make and sell an invention is a specific period of time. A patent is also available for improvement in their previous Invention. The main motto to enact patent law is to encourage inventors to contribute more in their field by awarding them exclusive rights for their inventions. In modern terms, the patent is usually referred to as the right granted to an inventor for his Invention of any new, useful, non-obvious process, machine, article of manufacture, or composition of matter. The word “patent” is referred from a Latin term “patere” which means “to lay open,” i.e., to make available for public inspection. There are three basic tests for any invention to be patentable:

  • Firstly, the invention must be novel, meaning thereby that the Invention must not be in existence. 

  • Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant improvement to the previous one; mere change in technology will not give the right of the patent to the inventor. 

  • Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the Invention must not be solely used in any illegal work and is useful to the world in a bonafide manner.

An invention considered as new if, on the date of filing the application, any such invention is not known to the public in any form, i.e. oral, writing, or any other form. Anything shall not be termed as inventive if such a thing is already known to the public domain. The patent has a limited term of 20 years, which is counted from the date of filing of the patent application. A patent is a territorial right. Thus it can only be applied in the country where it has been granted. A patent is a territorial right. Thus it can only be applied in the country where it has been granted. Therefore, any legal action against infringement or infringement of patent rights can only be taken in that country. To obtain patent protection in different countries, each country must apply for a patent. The Patent Cooperation Treaty (PCT) provides a way to file an international patent application in which a patent can be filed through a single patent application in a large number of countries. However, the PCT of a patent remains discretionary of the individual patent office only after the application is filed.

Under the Indian patent law, a patent can be obtained only for an invention which is new and useful. The invention must relate to the machine, article or substance produced by a manufacturer, or the process of manufacture of an article. A patent may also be obtained for innovation of an article or of a process of manufacture. In respect to medicine or drug and certain classes of chemicals, no patent is granted for the substance itself even if it is new, but the process of manufacturing and substance is patentable. The application for a patent must be true and the first inventor or the person who has derived title from him, the right to apply for a patent being assignable.

Some inventions cannot be patented. In the European Patent Convention (EPC) law there is the list of non-patentable subject-matter which includes methods of medical treatment or diagnosis, and new plant or animal varieties. Further information on such fields can be obtained from a patent attorney. Nor many patents be granted for inventions whose exploitation would be contrary to public order or morality (obvious examples being land-mines or letter-bombs).The following are not regarded as inventions, discoveries, innovations, scientific theories and mathematical methods, aesthetic creations, such as art or literature works or art of writing, schemes, rules and methods for performing mental acts, playing games or doing business, presentations of information, computer software. 

PROCEDURE OF PATENT 

STEP 1: Write about inventions (idea or concept) with each and every detail.

Collect all information about your Invention such as:

  • Field of Invention

  • What does the Invention describe

  • How does it work

  • Benefits of Invention

If you worked on the Invention and during the research and development phase, you should have some call lab records which are duly signed with the date by you and the concerned authority.

STEP 2: It must involve a diagram, drawing and sketch explains the Invention. Drawings and drawings should be designed so that the visual work can be better explained with the invention work. They play an important role in patent applications.

STEP 3: To check whether the Invention is patentable subject or not. Not all inventions can be patentable, as per the Indian Patent Act there are some inventions which have not been declared patentable.

STEP 4: Patent Discovery

The next step will be to find out if your Invention meets all patent criteria as per the Indian Patent Act-

  • The invention must be novel.

  • The Invention must be non- obvious.

  • The Invention must have industrial applications.

STEP 5: File Patent Application

If you are at a very early stage in research and development for your Invention, then you can go for a provisional application. It offers the following benefits:

  • Filing date.

  • 12 months-time for filing full specification.

  • Lesser cost.

After filing a provisional application, you secure the filing date, which is very important in the patent world. You get 12 months to come up with the complete specification; your patent application will be removed at the end of 12 months. When you have completed the required documents and your research work is at a level where you can have prototypes and experimental results to prove your inventive move; you can file the complete specification with the patent application. Filing the provisional specification is an optional step if you are in the stage where you have complete knowledge about your Invention you can go straight to the full specification.

STEP 6: Publication of the application

Upon filing the complete specification along with the application for the patent, the application is published 18 months after the first filing. If you do not wish to wait until the expiration of 18 months from the filing date to publish your patent application, an initial publication request may be made with the prescribed fee. The patent application is usually published early as a one-month form request.

STEP 7: Request for Examination

The patent application is scrutinized only after receiving a request for an RFE examination. After receiving this request, the Controller gives your patent application to a patent examiner who examines the patent application such as the various patent eligibility criteria:

  • Patent subject

  • Newness

  • Lack of clarity

  • Inventory steps

  • Industrial application

  • By enabling

The examiner makes the first examination report of the patent application upon a review for the above conditions. This is called patent prosecution. Everything that happens for a patent application before the grant of a patent is usually called patent prosecution. The first examination report submitted to the Controller by the examiner usually includes prior art (existing documents prior to the filing date) that are similar to the claimed invention and is also reported to the patent applicant.

STEP 8: Answer the objections

Most patent applicants will receive some type of objections based on the examination report. The best thing is to analyse the examination report with the patent professional (patent agent) and react to the objections in the examination report. This is an opportunity for an investor to communicate his novelty over the prior art in examination reports. Inventors and patent agents create and send a test response that tries to prove that their Invention is indeed patentable and meets all patent criteria.

Step 9: clearance of objections

The Controller and the patent applicant are connected for ensuring that all objections raised regarding the invention or application is resolved and the inventor has a fair chance to prove his point and establish novelty and inventive steps on other existing arts. Upon receiving a patent application in order for grant, it is the first grant for a patent applicant.

Step 10: once all patent requirements are met, the application will be placed for the grant. The grant of a patent is notified in the Patent Journal, which is published periodically.


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