WHAT IS A PATENT

A Patent is a monopoly right granted to person who has invented a new and useful article or an improvement of an existing article or a new process of making an article.

INVENTIONS NOT PATENTABLE

Section 3 of THE PATENTS ACT, 1970 provide for the invention which are not patentable:

(a) An invention which is frivolous or which claims anything obviously contrary to well established natural laws;
(b) An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
(c) The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
(d) 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, ether’s, polymorphous, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
(e) 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;
(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
(g)..(omitted)
(h) A method of agriculture or horticulture;
(i) 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.
(j) Plants and animals in whole or any part thereof other than micro¬ organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
(k) A mathematical or business method or a computer program or algorithms;
(l) A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
(m) A mere scheme or rule or method of performing mental act or method of playing game;
(n) A presentation of information;
(o) Topography of integrated circuits;
(p) An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

INVENTIONS RELATING TO ATOMIC ENERGY NOT PATENTABLE

Section 4 of THE PATENTS ACT, 1970 Provides That No Patent Shall Be Granted In Respect Of An Invention Relating To Atomic Energy Falling Within Sub-Section (1) Of Section 20 Of The Atomic Energy Act, 1962 (33 Of 1962).
Persons Entitled To Apply For Patents
1) Subject To The Provisions Contained In Section 134, An Application For A Patent For An Invention May Be Made By Any Of The Following Persons, That Is To Say,—
(A) By Any Person Claiming To Be The True And First Inventor Of The Invention;
(B) By Any Person Being The Assignee Of The Person Claiming To Be The True And First Inventor In Respect Of The Right To Make Such An Application;
(C) By The Legal Representative Of Any Deceased Person Who Immediately Before His Death Was Entitled To Make Such An Application.
(2) An Application Under Sub-Section (1) May Be Made By Any Of The Persons Referred To Therein Either Alone Or Jointly With Any Other Person.

TYPE OF PATENT APPLICATION

PROVISIONAL APPLICATION

A provisional application is a temporary application which is filed when the invention is not finalized and is still under experimentation.
Advantages of filing a provisional application:

• Applicant gets 12 months’ time to fully develop the invention and ascertain its market potential.
• Helps to establish “priority” right over the invention.
• Enables the applicant to use the term “patent pending” on their product.
• Less expensive to prepare and file the application.
• Enables the applicant to file International applications and claim priority within 12  months
• However, in order for the patent to be granted, a provisional application must be followed by a complete specification within 12 months. Moreover, the provisional application should be sufficiently detailed and must be drafted very carefully to ensure that the priority rights are secured for your invention.

ORDINARY APPLICATION OR NON-PROVISIONAL APPLICATION

An application for patent filed in the Patent Office without claiming any priority of application made in a convention country or without any reference to any other application under process in the office is called an ordinary application. An ordinary application must be accompanied with a complete specification and claims.

CONVENTION APPLICATION

An application for patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries, is called a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.

PCT INTERNATIONAL APPLICATION

A PCT Application is an international application governed by the Patent Cooperation Treaty, and can be validated in upto 142 countries.

Advantages of filing a PCT Application

• A single international patent application can be filed in order to seek protection for an invention in up to 142 countries throughout the world.
• The priority date obtained by filing a PCT application is internationally recognized, and has an effect in each of the countries designated.
• It gives the application 30/31 months to enter into various countries from the international filing date or the priority date, and therefore gives the applicant more time to assess the viability of the invention.
• Delays the expenses associated with applying for a patent in various countries
• Provides an International Search Report citing prior art, which gives an indication to the applicant whether the invention is novel and innovative.
• Provides an option for requesting an International Preliminary Examination Report, the report containing an opinion on the Patentability of the invention.
• The International Search Report and International Preliminary Examination Report, allows the applicant to make more informed choices early in the patent process, and to amend the application to deal with any conflicting material, before the major expenses of the national phase of the patent process begin. It also gives the applicant a fair idea on the patentability of the invention before incurring charges for filing and prosecuting the application in each country.

PCT NATIONAL PHASE APPLICATION

When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date (whichever is earlier).

PATENT OF ADDITION

When an applicant feels that he has come across an invention which is a slight modification of the invention for which he has already applied for or has obtained patent, the applicant can go for patent of addition if the invention does not involve a substantial inventive step. There is no need to pay separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.

DIVISIONAL APPLICATION

When an application made by applicant claims more than one invention, the applicant on his own or to meet the official objection may divide the application and file two or more applications, as applicable for each of the inventions. This type of application, divided out of the parent one, is called a Divisional Application. The priority date for all the divisional applications will be same as that claimed by the Parent Application (Ante-dating)

NATURE OF THE APPLICANT

Previously in India, the Govt. Fee used to vary depending upon whether the Applicant is natural person or non-natural person. Now w.e.f. February 28, 2014, in case of non-natural persons a new category of Applicant i.e. small entity has been introduced and Govt. Fee has been increased from 60% to 100% for various actions.

Small Entity

Small entity means an entity whose investment in plants/ machines in case indulged in manufacturing/ production of goods is less than 10 crores (approx. 1.6 Millions US Dollars as per RBI reference rate dated March 4, 2014) and in case indulged in service industry the investment in equipment is less than 5 crores (approx 0.8 Million US Dollar as per RBI reference rate dated March 4, 2014). It is to be noted that while calculating investment in plants and machinery, the cost of pollution control, research and development, industrial safety devices, and such other things specified under THE MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006 is to be excluded. An affidavit duly executed and notarized could be filed along with Form 28 to claim the small entity status.

Requirement for filing patent application in India

ORDINARY APPLICATION

1) Name, Address and Nationality of applicant(s)
2) Name, Address and Nationality of inventor(s)
3) Complete Specification [or provisional specification if Provisional Application needs to be filed] 4) Description, Claims, Abstract & Drawings, if any
5) Details of all corresponding foreign applications, including application number, date of filing and current status

CONVENTION APPLICATION

1) Name, Address and Nationality of applicant(s)
2) Name, Address and Nationality of inventor(s)
3) Complete Specification including Description, Claims, Abstract & Drawings, if any
4) Priority claim details (Priority date, Country and Application number)
Certified copy of priority document (if not filed at International Bureau)
Verified English translation of priority document (may submit later)
5) Details of all corresponding foreign applications, including application number, date of filing and current status

PCT NATIONAL PHASE APPLICATION IN INDIA

1) Name, Address and Nationality of applicant(s)
2) Name, Address and Nationality of inventor(s)
3) Complete Specification including Claims, Abstract & Drawings, if any
If the PCT application is in a language other than English, a verified English translation of the PCT specification is required.
4) PCT Application Details (International Application Number & Date)
5) Details of Priority application (if applicable)
i) Priority date, Country and Application number
ii) Certified copy of priority document (if not filed at International Bureau)
iii) Verified English translation of priority document (can be filed later)
6) Details of all corresponding foreign applications, including application number, date of filing and current status
7) Other Documents (if applicable)
i) Particulars of Amendments made to specification/claims during the International Phase (Verified English translation)
ii) Corrections or changes made at the International phase (Form PCT/IB/306)

PROCEDURE FOR THE GRANT OF PATENT

After filing Patent Application in India, a Request for Examination is filed with the Patent Office:

Request for Examination (Section 11B, 35, Rule 24B, Form-18, First Schedule)

An Application for a Patent will not be examined unless the applicant or any other person interested makes a request for examination. The request is to be filed in Form 18 with the fee as prescribed in First Schedule.
A request for examination has to be made within forty-eight months from the date of priority of the application or from the date of filing of the application, whichever is earlier. If no such request for examination is filed within the prescribed time limit, the application shall be treated as withdrawn by the applicant.
In a case where secrecy direction has been issued under Section 35, the request for examination may be made within six months from the date of revocation of the secrecy direction, or within forty-eight months from the date of filing or priority, whichever is later.
The Office will not examine an application unless it is published and a request for examination is filed.
When a request for examination is filed by a person interested other than the applicant, the Examination Report is sent to the applicant only, and intimation is given to the person interested.
Thereafter the application is examined by patent office and objections, if any, are raised thereto.
After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes.
The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

RENEWAL

The patent is renewed every year from the date of patent.

TERM OF PATENT

A Patent Is Granted For A Term Of 20 YEARS To Be Counted From The Date Of Its Application.
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