IPR( Intellectual Property Rights)
Trending

Patent Law in India

Introduction

Patent are those rights that the government gives the person, which makes the owner of that right to be the exclusive owner and restrict someone else to use, sell, or produce that product. Patent Law is a part of Intellectual Property Rights Law which exclusively deals with rights related to patents. For an invention to be patentable, there are certain conditions which are:-

  • The Invention should be new and should not exist. 
  • The Invention should be made with a non-obvious process meaning that the Invention should be advancement in the previous technology. An invention which just made with different techniques cannot be patentable.
  • The Invention must be made to be used in a helpful way and with good faith in mind.

The patent has a life term of 20 years, and the term starts from the date when the application for the patent is filed. The patent can be renewed by paying a renewable patent fee before the due date. A patent is valid in the country in which it was issued. However, the Patent Corporation Treaty (PCT) opens a way to file a patent. So in patent infringement, the action against such infringement can only be taken in the country in which it was issued. Some invention that cannot be patented which includes

  • An Invention related to atomic energy 
  • When the Invention is a mere re-arrangement of known devices
  • When the Invention is related to agricultural method or horticulture method
  • When the Invention is related to mathematical or business method algorithms
  • The Invention related plants and therapeutic treatment
  • The inventions of scientific principles
  • The Invention related to rules of method of performing a mental act  
  • Any invention which is against human decency

History of Patent Act

The history of patents started in 1856. Act VI of 1856 was introduced in India to showcase their Invention and make it readily available. However, this act was repealed by the British government by the act IX of 1857. A new act XV of 1859 was introduced what gave ‘exclusive privileges’ to the inventors. This act increased the priority period to 12 months from 6 months and removed the people who import those inventions from the ambit of the term inventor. This was further amended in the years1872, 1883, 1888. When the act Indian Patent and Design Act, 1911 came into force, all the previous acts were set aside. The Patents Act 1970 and Patent Rule act 1972 came into existence on 20 April 1972. This Patent Act of 1970 was made on the observation made by Justice Ann. She also observed that a process patent should be granted for the Invention, including drugs, chemicals, and food. In 2005 an amendment was made in the Patent Act 1970, which allowed patents in microorganisms, medicine, chemicals, and food. 

Patent Law in India
https://www.lawyerslawhub.com/?p=580

Procedure to apply for a patent

To apply for a patent first invention must be checked against the conditions for the product to be called an invention. According to section 2(l) of the Patents Act, the Invention should be new and not been mentioned in a publication in India or Outside India. The person who files for the patent might be considered as the inventor regardless if it was made by someone else. The Invention should not fall under the list of things that cannot be patented. There should be a blueprint, sketch, or drawings that can explain how the inventor came upon the idea of that Invention. The patent should be novel, non-obvious, and have industrial use. The inventor should give the use of that Invention and how it will help the general public. The following steps are taken.

Making of Invention& filing of Application– When all the ingredients of an invention are considered, a patent application can be filed at the patent office. This head patent office is located in Kolkata, and it has branches in Mumbai, Delhi, and Chennai. A provisional application will be filed for those products which are still in research and development. These are advantageous as they cost less than usual applications, and 12 months is given for providing a complete specification of that product. Suppose the inventor has a mock-up of the intended product, which can prove the Invention done, which can also be shown for patent application. The filing of the provisional specification is not mandatory, and if the inventor has the entire specification, he can directly file for the same.

Publication– when the complete specification is filed, the application is not disclosed to the public for 18 months from the filing date. The Applicant wishes his application can be published before 18 months.

Request for Examination– the examiner will thoroughly check the application. The examiner will check whether the Invention is not prohibited for grant of patent and whether that Invention meets the criteria to be patentable. The examiner will issue the First examination report (FER), which will have objections if any examiner finds any. A 12 month time is given to the Applicant to answer those objections. If these objections are removed, then the patent is granted within one month by the controller. 

Pre-grant Opposition– an opposition can be filed within six months from the publication. The objections are sent to the Applicant, and he receives three months from giving a response. After the hearing of the Opposition and the Applicant, the controller may either reject the claim of the Opposition or grant the patent of the Applicant, or he may reject the patent application or might order the Applicant to revise the Invention for the objectionable part. This will be done within one month of the completion of the proceedings. The patent certificate is issued, and the announcement of the grant of the patent is published in the official journal.

In case of infringement of a patent that includes acts like selling, manufacturing, offering to sell, importing the patented invention without the patent holder’s permission can be charged under sections 104 to 114 of the patent act. 

Conclusion 

Patents are a great way to certify the ownership of the Invention. It also motivates the patent holder to keep making such inventions for the betterment of the public. Over time, applying for a patent can also be simplified so that it will not hurt the inventor’s interest, and the companies can take advantage of the patent financially and economically.   

Animesh Sharma

Animesh Sharma is from Jaipur, Rajasthan. He has completed B.A. LL.B (Hons) from Manipal University Jaipur. He like to play football, listen to music, play piano, play games.

Leave a Reply

Your email address will not be published.

Back to top button
Hey, wait!

Before you go, Subscribe to our Newsletter.