A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property.
Who Can File A Patent Application?
An application for a patent for an invention can be made by any of the following persons either alone or jointly with another:
i. true and first inventor
ii. his /her legal assignee
iii. legal representative of deceased inventor or assignee
Following three conditions to be satisfied by an invention to be patentable –
Novelty – An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals, books, newspapers etc. constitute the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty. Novelty is assessed in a global context.
An invention will cease to be novel if it has been disclosed in the public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Prior use of the invention in the country of interest before the filing date can also destroy the novelty. Novelty is determined through extensive literature and patent searches.
It should be realized that patent search is essential and critical for ascertaining novelty as most of the information reported in patent documents does not get published any where else.
Inventiveness (Non-obviousness) – A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application.
The prior art should not point towards the invention implying that the practitioner of the subject matter could not have thought about the invention prior to filing of the patent application. Inventiveness cannot be decided on the material contained in unpublished patents. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent.
In other words a very simple invention can qualify for a patent. If there is an inventive step between the proposed patent and the prior art at that point of time, then an invention has taken place. A mere ‘scintilla’ of invention is sufficient to found a valid patent.
Usefulness – An invention must possess utility for the grant of patent No valid patent can be granted for an invention devoid of
What cannot be patented
Many things are not open to patent protection.
The laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated E=mc2; nor could Newton have patented the law of gravity. Such discoveries are manifestations of nature, free to all people and reserved exclusively to none.
The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.
The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and that also includes functionality, i.e., a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted patent protection.
Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented. Thus it has been held that methods of doing business and printed matter cannot be patented.
In the case of mixtures of ingredients, such as medicines, a patent cannot be granted unless the mixture is more than the effect of its components. It is of interest to note that so-called “patent medicines” are generally not patented; the phrase “patent medicine” in this connection does not mean that the medicine has been awarded a patent.
Documents Required For Filing a Patent Application
Application form filed in triplicate.
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 approved extension).
Drawing in triplicate (if applicable).
Abstract of the invention in triplicate.
Information and undertaking enlisting the number, filing date and current status of each foreign patent application in duplicate under S. 8 of the Act.
Priority document (if priority date is claimed).
Declaration of inventor ship.
Power of attorney (if filed through Patent Agent).
Fee in cash or by local cheque or by demand draft.
Office for Filing An Application
Application is required to be filed within the territorial limits 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.
On receiving a request for examination, the Controller refers the application and specification and other documents to the Examiner, ordinarily within 1 month from the date of its publication or 1 month from the date of request for examination whichever is later.
The examiner submits the report to the Controller ordinarily within one month but not exceeding 3 months from the date of reference of the application by the Controller.
The Controller would then dispose off the report ordinarily within one month from the date of receipt of such report and issue the first examination report. The first examination report is issued ordinarily within 6 months from the date of the request for the examination or 6 months from the date of publication whichever is later.
Time for putting the application in order for grant under section 21 is twelve months from the date of receipt of first examination report. No extension of time is permissible. Therefore, it is necessary to comply with all the requirements and objections raised by the patent office within twelve months from the date of first examination report.
Once all the requirements are met with and the examiner is satisfied with the arguments and amendments of the applicant, the application proceeds for grant. The grant is notified in the Patent Journal, published weekly by the Indian patent office. The post grant opposition proceedings may follow within one year from the date of said notification.
Leading cases :
1) Bajaj Auto Limited Vs. TVS Motor Company Limited JT 2009 (12) SC 103
In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.
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