In India, Patent Law is governed by The Patents Act of 1970, which came into force in 1970. This law allows inventors to protect their new and useful inventions, including processes, machines, and products. In simple terms, this law gives patent rights to new inventions; inventions can be a new way of doing something, a new product, or a new type of manufactured item.
What is Patent Law in India?
A Patent is a special right given by the government to an inventor. This right stops others from using, making, or selling the invention for a certain amount of time. The main goal of patent law is to motivate inventors to create more by giving them these exclusive rights.
The patent registration offers several benefits:
Legal Protection: Getting a patent in India gives the inventor exclusive rights. This means they can legally stop others from using their invention without permission. It stops others from using something that doesn't belong to them and makes sure the person who came up with the idea is legally safe.
Market Advantage: Getting a patent makes a product more respected and known in the market because it shows it's unique and inventive. The owner also gets exclusive rights to make and sell the invention, which gives them a competitive advantage over products that aren't patented.
Financial Opportunities: Owning a patent can lead to financial benefits. The inventor can sell the patent to someone else, transferring ownership rights, or they can license it to others while still owning it themselves.
Both choices allow for making money through royalties, sales, or other financial agreements.
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How does Patent Law work in India?
To get a patent on your product, your invention must fulfill four criteria. Together, these are often referred to as the NUNS criteria. Which include novelty, non-obviousness, utility and subject matter requirements . These tests ensure that an invention meets specific requirements laid out by Indian patent law.
Novelty: The invention has to be brand new and different from anything that already exists or has been shared before. It shouldn't be something that's already known to the public or predicted by previous information.
Non-obviousness: The invention must be something that needs creativity and is not obvious to experts in that field. It should not be something they could easily think of, using what they already know.
Utility: The invention must be something that can be used in real industries. It should be practical and useful, not just an idea without real-world applications.
Subject Matter Requirements: Under this, some countries don't allow patents for certain technologies. For example, in India, you can't patent products related to atomic energy. In India, you can't patent things like diagnostic methods, business methods, inventions based on traditional knowledge, living organisms (like clones), or inventions that go against public morality.
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Application Process and Required Documents:
Getting a patent involves a simple set of steps. There are several categories of applications that can be filed through the IP Website of India. Among these, you need to pick the right kind of application to file. When you're ready to apply for a patent in India and your product meets all the requirements, you can start the filing process. You have these choices:
- Provisional Application: This gives you 1 year of protection and serves as a placeholder. It secures your filing date early on.
- Ordinary Application: This option provides full 20-year patent protection. It includes all the details and specifications of your invention.
- Convention Application: Convention Patent filing lets you keep the original application's priority date when filing for Patents in other countries. This means you can file in international convention countries within 12 months of filing your initial Patent application in India, ensuring you secure Patent registration efficiently.
For instance, there is an international agreement called the Paris Convention. Special rules from this help you protect your brand, logo, or trademark in different countries as well.
Here's how it works:
First Step: You register your Patent in one country.
Time Frame: You have a certain amount of time (usually twelve months) to apply for the same patent in other countries that follow the same rules.
Priority Date: The date you first applied will count as the start date for all your applications in other countries. This way, you don't have to start over in each country, making it simpler and faster to protect your patent everywhere.
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PCT International Application: A PCT(The Patent Cooperation Treaty) Application is an international patent application managed by the Patent Cooperation Treaty. It can be recognized in up to 142 countries worldwide.
PCT National Phase Application: When you apply internationally through the PCT (Patent Cooperation Treaty) and choose India, you can submit your national application in India within 31 months from either the international filing date or the priority date, whichever comes first.
Patent of Addition: If someone makes a small improvement to their existing invention, they can apply for a "patent of addition" if it is not a major new idea. There is no extra fee for this during the main patent's term, and it expires when the main patent does.
Divisional Application: If an applicant's application claims multiple inventions, they can split it into two or more separate applications to address official objections or voluntarily. These new applications, known as Divisional Applications, maintain the same priority date as the original application.
Step by step process of getting a patent
Step 1: Conducting a Patent Search.
Once you've decided on the type of patent application to file, the next step in the patent filing process in India is conducting a Patent Search. This search is critical to check if any similar inventions have already been patented or are publicly known.
The aim is to ensure that your product, which you're seeking to patent, is completely new and hasn't been disclosed before.
If the search confirms that there are no existing patents or disclosures similar to your invention, you can move forward to the next stage of the process. This initial search is important to establish the uniqueness and potential patentability of your invention before proceeding further.
Step 2: Filing the Patent Application.
The next step is to file the patent application in India. This involves filling out Form-1 for the application and submitting Patent Specification in Form-2.
The specification should outline the technical details and claims of your invention. Depending on the complexity of your invention, additional documents such as drawings or experimental data may also be necessary.
If you started with a provisional application (a provisional application is filed when the invention is still being tested or developed), it's important to replace it with the ordinary application within one year.
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Step 3: Patent Publication.
The next step in the patent application process is the publication of your application in the Patent Journal. This happens 18 months after you submit your application. This publication makes the details of your invention publicly available for the first time, which is an important milestone in the patenting process.
Step 4: Requesting Patent Examination.
Within 48 months of submitting your patent application in India, you need to request an examination. An examiner will thoroughly review your application and may raise concerns if any issues are found. You have 12 months to address these concerns.
If your responses are not satisfactory, show cause hearings may be scheduled to resolve the objections.
Step 5: Grant of Patent.
Once all objections are satisfactorily addressed, the Registrar will grant patent rights to the inventor. This grant gives exclusive rights for 20 years from the date of the application, completing the patent application process.
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Renewal of Patents In India:
Once a patent is granted for an invention in India, it's critical to maintain its validity through regular renewal. According to Section 53 and Rule 80 of the Indian Patents Act, this involves paying Patent Renewal Fees throughout its 20-year lifespan.
Timing of Renewal Fees: Renewal fees must be paid before each relevant year ends. For example, the fee for the 5th year must be paid by the end of the 4th year from the patent's date. This schedule continues annually from the 2nd year onward. Payment can be made in advance for up to two years or more.
Payment Details: When paying renewal fees, specify the patent number, date, and the year for which the fee is being paid.
Extensions: Extensions up to 6 months are allowed with payment of a penalty fee. FIf you don't pay the renewal fees by the new deadline, the patent expires and becomes public property.
Delayed Grant: If a patent is granted more than 2 years after its application filing date, pending fees must be settled within 3 months from the patent's registration.
In short, to keep a patent protected in India, you need to pay fees every year on time. If needed, you can extend this period by six months with extra fees, ensuring continuous protection for your Patent.(You can check here the prescribed fees for your application - [The First Schedule Fees])
Who Has Ownership of Patents In India and How Long?
Owning a patent is very important because it gives the owner exclusive rights, title, and interest in the invention. These rights usually belong to the inventors unless they are transferred through a formal written agreement called a Patent Assignment.
The three main ways a patent can be transferred from one person to another:
License: A patent license is when the patentee (owner) grants permission to another person or company to make, use, or sell the patented invention. This can be exclusive (granted to only one licensee) or non-exclusive (granted to multiple licensees).
Assignment: An assignment involves transferring the entire ownership of the patent from the patentee to another person or company. This requires a written document, known as an assignment deed, which must be signed by both the current owner (assignor) and the new owner (assignee).
Transmission: Transmission refers to the transfer of ownership of a patent upon the death of the patentee. The patent rights are transferred to the patentee's heirs or estate, as specified in their will or according to the laws of inheritance in the relevant jurisdiction.
These methods allow for the legal transfer of patent rights, either for temporary use (license), permanent ownership (assignment), or upon the patentee's death (transmission).
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Patent Infringement and Legal Remedies.
Patent infringement happens when someone uses, makes, sells, or offers to sell someone else's patented invention without permission. It means unauthorized parties (people who do not have permission or the right to do something) are doing activities that are protected by someone else's patent rights, like manufacturing, selling, or using the patented invention.
Remedies are available to patent owners in infringement cases under section 108 of The Patents Act,1970:
- Monetary Relief:
- Compensatory Damages: Patent owners can ask for money to make up for lost profits caused by someone else using their invention without permission, based on how valuable the patent is.
- In cases where infringement is deliberate, courts can award damages that are triple the compensation initially granted. Damages can usually be sought starting from the patent issue date up to 6 years before the infringement claim is filed.
- Equitable Relief
- Injunctions: Courts can issue orders to stop someone from continuing to use or from using in the future something that infringes on a patent.
- Preliminary Injunction: Early in a legal case, courts can issue orders to temporarily stop certain actions that are in dispute, such as making a product that is patented.
- Permanent Injunction: A final court order that permanently stops certain activities or requires specific actions to be taken.
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FAQs:
1. Who grants Patent Registration in India?
Patent Registration is granted by the Office of the Controller General of Patents, Designs, and Trade Marks under the Indian Patent Act 1970.
2. What is Patent Search?
Patent Search is the process of searching if there are any inventions existing in the same field similar to the one for which patent registration is being sought.
3. What is the validity of Patent Registration?
Patent filing procedure in India extends to 20 years from the date of application. However, if it is a provisional patent, it will lapse within one year from the application date and must be replaced by a complete application before that.
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4. What is the time taken in the procedure for grant of patent?
Patent registration process or procedure for obtaining a patent can take months to complete as it has several stages. At the earliest, it might take from 12 to 48 months, if there are minimal objections and oppositions to your application.
5. Can I get patent rights without completing the procedure for obtaining a patent?
No, to gain exclusive rights over your invention, you must take patent registration. However, you still enjoy legal protection against plagiarism, even if your invention is not patented.
References:
- E-Gateways
- Patent Search
- Patent Journal
- The Patent (Amendment) Act, 2002
- Section 53 Rule 80 of Indian Patents Act
- Section 108 of The Indian Patents Act
Written by Ruthvik Nayaka
Ruthvik Nayaka is a final year law student, his interests lies in areas including, but not limited to Corporate Law and taxation law. He is also the EN-ROADS Climate Ambassador. He facilities climate-workshop, climate action simulation game and group meetings.
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Further Reading
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