Patent
DIVINE LOGICS
What is a Patent?
Patent, under the Act, is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patent, anybody can make use of the invention. Patent can be classified into following types:-
a) Ordinary Patent
b) Patents of addition
c) Convention
Patentable Inventions
An invention means any new and useful art, process, method or manner of manufacture; machine, apparatus or other article; or substance produced by manufacture, and includes any new and useful improvement of any of them, and an alleged invention.
What is not Patentable?
(1) An invention that is frivolous or that claims anything obviously contrary to well-established natural laws;
(2) An invention the primary or intended use of which would be contrary to law or morality or injurious to public health;
(3) The mere discovery of a scientific principle or the formulation of an abstract theory;
(4) The mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;
(5) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
(6) The mere arrangement or rearrangement or duplication of known devices, each functioning independently of one another in a known way;
(7) A method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient, or for the improvement or restoration of the existing machine, apparatus or other equipment, or for the improvement or control of manufacture;
(8) A method of agriculture or horticulture;
(9) Inventions relating to atomic energy.
In the case of inventions relating to substances prepared or produced by chemical processes (including alloys, optical glass, semiconductors and inter-metallic compounds) & substances intended for use or capable of being used as food. No patent will be granted in respect of claims for the substances themselves, but claims for the methods or processes of manufacture will be patented.
Legislation
The Patent system in India is governed by the Patents Act, 1970 (No 39 of 1970) & The Patents Rules 1972, effective from April 20,1972. Subsequently The Patents Act, 1970 is amended effective from January 1, 1995 & The Patents Rules, 1972 is amended effective from June 2, 1999.
Administration & International Treaties
The Patent Office, under the Ministry of Commerce & Industry, Department of Industrial Policy & Promotion, has been established to administer the various provisions of the Patents Law relating to the grant of Patents & The Designs Law, relating to the registration of Industrial Designs.
Convention establishing World Intellectual Property Organization (WIPO)
TRIPS Agreement under the World Trade Organization.
Paris Convention for the protection of Industrial Property with effect from Dec. 7, 1998.
Patent Cooperation Treaty (PCT) with effective from Dec. 7, 1998.
Documents required for filing an Application
1) Application form in triplicate.
2) Provisional or complete specification in triplicate. If the provisional specification is filed it must be followed by complete specification within 12 months (15 months with extension).
3) Drawing in triplicate (if necessary).
4) Abstract of the invention (in triplicate).
5) Information and undertaking listing the number, filing date and current status of each foreign patent application in duplicate.
6) Priority document (if priority date is claimed).
7) Declaration of inventorship where provisional specification is followed by complete specification or in case of convention application.
8) Power of attorney (POA).
Territoral Jurisdiction
Application is required to be filed according to the territorial Jurisdiction where the applicant or the first mentioned applicant in case of joint applicants for a patent normally resides or has domicile or has a place of business or the place from where the invention actually originated. If the applicant for the patent or party in a proceeding having no business, place or domicile in India, the appropriate office will be according to the address of service in India given by the applicant or party in a procceding.
Rights conferred by Patentee
A patent grant gives the patentee the exclusive right to make or use the patented article or use the patented process. He can prevent all others from making or using the patented process. A patentee has also the right to assign the patent, grant licenses under, or otherwise deal with it for any consideration. These rights created by statute are circumscribed by various conditions and limitations.
Register of Patents
The Register of Patents will be kept in the Patent Office and its branch offices. Register of Patents can be inspected or extract from it can be obtained on payment of prescribed fee. Register of Patents contains full details of the Patent which include Patent number, the names and addresses of the patentee; notification of assignment etc.; renewals, particulars in respect of proprietorship of patent etc.
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Examination and Publication
All the applications for patent accompanied by complete specification are examined substantively. A first examination report stating the objection(s) is communicated to the applicant or his agents. Application or complete specification may be amended in order to meet the objection(s). Normally all the objections must be met within 15 months from the date of first examination report. Extension of time for three months is available, but application for extension therefor must be made before the expiry of normal period of 15 months. If all the objections are not complied with within the normal period or within the extended period the application will be deemed to have been abandoned. When the application is found to be suitable for acceptance it is published in the gazette of India (Part III, Section2). It is deemed laid open to the public on the date of publication in the gazette of India.
Filling Opposition
Notice of opposition must be filed within four months of notification in the Gazette. Extension of one month is available, but must be applied for before expiry of initial four month period.
Grant or Sealing of Patent
If the application is not opposed or the opposition is decided in favour of the applicant or is not refused the patent is granted or sealed on payment of sealing fee within 6 months from the date of advertisement. However, it is extendable by three months.
License
Applications must be filed on the prescribed form with the Controller for the registration of licenses and any other documents creating an interest in a patent in order for them to be valid. A license must be recorded within six months from the date of the document.
Duration of Patent
A patent lasts for 14 years from the date of filing the complete specification (if an application is filed with provisional specification on January 1, 1989, and a complete specification is filed on January 1, 1990, the duration is counted from January 1, 1990). However, for food, drug and insecticide patents, the life is seven years from the date of complete specification, or five years from date of sealing, whichever is shorter.
Restoration
Application for restoration of a patent that lapses due to nonpayment of renewal fees must be made within one year of lapse. If an overdue annuity is not paid within the extension period, the one-year period for seeking restoration commences from the date of recordal.
Infrigment of Patent
Infringement can consist of taking away essential features of the patented invention; utilizing claimed features; copying patented substances; mechanical equivalence; taking part of the invention. while the patent is in force. Use by the government or for government purposes is not infringement. Such use must be paid for on terms to be agreed upon before or after use. Accidental or temporary use, use for research, use on foreign vessels, do not constitute infringement.
Appeal lies in the High Court. Appeal must be lodged within three months from the decision of the Controller.
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