Patent FAQ

A Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. The exclusive right is to manufacture the new process of making an article invented or manufacture an article according to invented process for a limited period.

What is Patent ?

A Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. The exclusive right is to manufacture the new process of making an article invented or manufacture an article according to invented process for a limited period. During the term of the patent the owner of the patent, i.e. the patentee can prevent any other person from using the patented invention. After the expiry of the duration of the patent anybody can make use of the invention. The invention then becomes part of the public domain.

A Patent is creation of statute and is therefore territorial in extent. Thus a patent granted in one country cannot be enforced in another country unless the invention concerned is patented in that country also.

What is patentable?

Invention means any new and useful:

  • Process, method or manner of manufacture
  • Machines, apparatus or a product
  • Substances produced by manufacture and include any new and useful improvements of any of them and an alleged invention.

Inventions claiming substances intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi conductors and inter-metallic compounds) are now patentable under the patent ordinance 2004.

Who can apply for Patent ?

A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

What can be patented?

An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under section 3 and 4 of the Act.

Where can I patent it?

The decision of where to patent is a commercial decision based upon the importance of the patented invention, the potential scope of protection provided by the Claims of the Patent, and the likely costs involved in securing and maintaining patent protection in any given country.

Patent protection is available in most countries so you have to decide where to file your applications. In India, Patent application can be filed at the Patent office of Delhi or Kolkata or Mumbai.

Does Indian Patent give protection worldwide?

Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.

When an application for patent is published?

Every application for patent is published after 18 months from the date of its filing or priority date whichever is earlier. However, following applications are not published.

Is there any provision in the law for early publication?

Yes, the applicant can make a request for early publication in Form 9 along with the prescribed fee. After receiving such request the Patent Office publishes such application within a period of one month provided the invention contained thereon does not relate to atomic energy or defense purpose.

Can any invention be patented after publication or display in the public exhibition?

Generally, a patent application for the invention which has been either published or publicly displayed cannot be filed. However the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in a exhibition organized by the Government or disclosure before any learned society or published by applicant. The details conditions are provided under Chapter VI of the Act (Section 29-34).

Should application for patent be filed before or after, publication of the details of the invention?

The application for patent should be filed before the publication of the invention and till then it should not be disclosed or published. Disclosure of invention by publication before filing of the patent application may be detrimental to novelty of the invention as it may no longer be considered novel due to such publication. However, under certain conditions, there is grace period of 12 months for filing application even after publication.

Why should one patent his invention?

To enjoy exclusive rights over the invention. If the inventor does not obtain patent rights for his invention and introduces his product/process based on his invention in the market, any body can copy his invention and exploit it commercially. To debar others from using, selling, offering for sale or manufacturing the inventor must obtain a patent. The inventor can use it himself/herself, sell or licence it to profit commercially.

  • Patents are useful in preventing your competitors from exploiting your invention.
  • You can force your competitors to design around your invention (if that is possible) which can cost them time and money.
  • It may put you in a stronger position with other companies who have Patents in which you are interested.
  • Customers are often impressed by 'Patented Technology' so patenting can have a positive role to play in your marketing strategy.
  • Patents are often a good 'keep off the grass' warning to other businesses. Many competitors are now more aware of Patents and the consequences of being found to be infringing a Patent.
How can one find out that an invention is already patented?

The person concerned can perform a preliminary search on Patent Office website in the Indian patent data base of granted patent or Patent Office journal published every week or by making search in the documents kept in the Patent Office Search and Reference Room, which contains Indian patents arranged according to international patent classification system as well in serial number. It is open to the general public from Monday to Friday, except Gazetted holidays. The public can also conduct search free of charge on the website of Patent Office. The person concerned can also make a request for such information under section 153 of the Act.

Patentable Inventions:

Invention means a new product or process involving inventive step and capable of industrial application. Not all inventions are patentable. For an invention to be patentable, it must be new, useful and non-obvious. Invention means a new product or process involving inventive step and capable of industrial application. Inventive step is defined as a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to the person skilled in the art. The national laws of a number of countries prescribe limitations on the patentability of inventions. As for example, the Indian law declares that Inventions which are frivolous or which claim anything obviously contrary to well established natural laws as not patentable. Inventions, the commercial exploitation of which could be contrary to public order or morality or which cause serious prejudice to human, animal or plant life or health or to the environment are also declared as non-patentable. Similarly there are several other specific categories of inventions, which are declared as non-patentable in India.

Not Patentable Inventions:

The following are not invention within the meaning of this Act,-

  • an invention which is frivolous or which claims anything obviously contrary to well established natural laws
  • an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.
  • the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature.
  • the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or 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.

Explanation.- For the purposes of this clause, salts, esters ethers, polymorphs, metabolites, pure form, particle size, isomer, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless thy differ significantly in properties with regard to efficacy.

  • 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;
  • the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
  • a method of agriculture or horticulture;
  • any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
  • plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
  • a mathematical or business method or a computer program per se or algorithms;
  • a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television production;
  • a mere scheme or rule or method of performing mental act or method of playing game;
  • a presentation of information;
  • topography of integrated circuits;
  • an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
What technology is protectable under a patent?

The invention must be new, useful, and non-obvious. Typically inventions are aesthetic designs, functional items, functional methods, or asexually reproduced plants.

Can I keep some information about my invention a secret?

There is a requirement that the invention be completely disclosed. Failure to disclose will invalidate the resulting patent. One cannot maintain information important to the patent as trade secret if the information was known as of the filing date.

What rights does a patent provide?

The right to prohibit (see previous question) does not automatically include the right for the inventor to make, use, sell, import and/or offer the invention for sale. Anyone is free, however, to engage in such activities unless there is a law prohibiting it.

Up to what extent the inventor has to disclose his/her invention to get a patent?

An inventor has to disclose his/her invention in such a manner that any person, other than the inventor, skilled in the art should be able to work the invention.

How to prepare Patent Specification?

A patent specification can be prepared by the applicant himself or his registered and authorized agent. The patent specification generally comprises of the title of the invention indicating its technical field, prior art, draw backs in the prior art, the solution provided by the inventor to obviate the drawbacks of the prior art, a concise but sufficient description of the invention and its usefulness, drawings (if Any) and details of best method of its working. The complete specification must contain at least one claim or statement of claims defining the scope of the invention for which protection is sought for.

What is a provisional specification?

Indian Patent Law follows first to file system. Provisional specification describes the nature of the invention to have the priority date of filing of the application in which the inventive idea has been disclosed. It must be followed by a complete specification describing the details of the invention along with a statement of claims within 12 months after filing of the provisional application. If the complete specification is not filed within the prescribed period, the application is treated as deemed to have been abandoned.

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