This article has been written by Ananya Dutta , a first year student from Institute of Law , Nirma University.
What is a Patent ?
Intellectual Property refers to the creations of a person’s intellect ( mind ) such as inventions , literary and artistic works , names , symbols , designs etc. which are used in commerce. These are protected by law in the form of Patents , Trade Marks , Copyright ; which enable such creators to get legitimate recognition and benefits for their works.
As per World Intellectual Property Organisation ( WIPO ) Patent has been defined as an exclusive right granted for an invention , which is a product or process that provides the patent owner with the right to decide how – or whether – the invention can be used by others. In Exchange for this right the creator makes technical information about the invention publicly available in the published patent document.
What all can be patented in India ?
The following are the criteria an invention needs to meet in order to be eligible for a patent registration in India-
- Any invention is not falling under the categories of inventions that are non- patentable under section 3 and 4 of the Patent Act ,1970.
- Novelty – An invention is said to be novel if it is not already published or known to public.
- Non Obvious – It should not be something commonly known by most people.
- Capable of Industrial Application ( usefulness )
Procedure to be followed for filing of a Patent-
There are two ways to file for a patent ; the inventor can file on his own or take the help of a patent filing professional or agency . The patent filing process often proves to be a complicated tedious one ; which is why most inventors are advised to seek the help of professionals .
Step 1 –
Checking the patentability of the invention-
Only if the invention for which a patent is desired meets the above four criterions of being a novel , non obvious invention capable of industrial application is patentable under the Patent Act 1970. Everything else falls under its section 3 and 4 and are termed as ‘ Non Patentable ’.
Drafting the patent application –
Indian Patent Application Form 1 needs to be filled by every Indian applicant and a form 2 patent specification also needs to be compulsorily provided by the applicant. The specification specifies the field of invention, detailed description of the invention with working examples and the best method to perform an invention so that a person skilled in the art can perform the invention. A patent can be both provisional and complete patent. Provisional patent means that the invention is still being tested and a 12 month time period is given to file for a complete patent.
Filing of the Application-
As per the Indian Patent Act, 1970 there are 6 different kinds of filing filed in the Indian Patent Office. These are:
- Ordinary application
- PCT National phase application
- PCT International application
- Convention application
- Divisional application
- Patent of addition application
Publishing the patent application-
Upon submitting all the required documents , the patent is published by the patent office in an official patent journal after 18 months from the date of filing or the date of priority ; whichever is earlier. This is done to give the public a chance to raise any objections regarding the invention. However if an inventor wishes to publish his invention before the 18 month period , then he needs to fill a form 9 ; in which case his invention will be published within 1 month from the date of such request made.
Examining the Patent Application-
Before the granting of patents inventions are thoroughly examined based on the merits of the invention claimed and the specifications provided. Unlike publication this process is not automatic and the applicant needs to make a request for the same by submitting Form 18. If there are some objections raised by an examiner then The response to an examination report has to be filed within 12 months of the issuance of the examination report .
Granting the Patent –
If the examiner has no objections to the invention or is satisfied with the reply for any of his objection ; the application is put in order for grant and the patent is then published in the official patent gazette.