Everything about patents

what can be patented, how to obtain a patent in India, how to buy and sell a patent, the legal processes etc.

Patent
Patent forms the most important part of any business relating to a product invention. Patent refers to the exclusive rights given by the government/state to the patentee for his invention for a specific period of time. Invention refers to a new and improved art, machine, process of manufacturing or substance produced by manufacture. Patents are aimed to give protection to various inventions and are in general granted for 20 years.

Patent rights are territorial such that a patent obtained in a particular country is not valid in another country. A separate patent application is to be filed by the patentee to get the patent in that country.

Why is Patent important?
Any competitor can mint money using your invention, thus "patent" protects such inventors. Patent gives exclusive rights to the inventor for producing such goods and excludes others to use such inventions. A patent holder gets legal right to file a case on the person who is using or selling any product without prior permission of the patent holder. By selling or licensing the invention also, one can mint money. Thus, the need of patent arises.

Legislation and Administration
The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003 as amended by the Patents (Amendment)Rules, 2006 effective from 05-05-2006

In India, the Patent office, under the department of Industrial policy and Promotion, Ministry of Commerce and Industry, is the statutory body for the registration and grant of a patent, which is headquartered in Kolkata.

International Treaties
India is a member of treaties of the following association:

• Trips agreement under the World Trade Organization.
• Convention establishing World Intellectual Property organization.(WIPO)
• Paris Convention for the protection of industrial Property.
• Patent Cooperation Treaty (PCT)

What can be patented?
For an invention to be patentable, a patentee has to prove that the invention made by him is a new and more useful process, article of manufacture, composition of matter, resulting into improvement thereof.

What is not patentable?

• Any invention that is trivial or contrary to the universal laws.
• Any agricultural or horticulture method.
• Any invention leading to formulation of abstract theory or discovery of new scientific law.
• Any invention adversely affecting public health or is contradictory to the moral laws.
• Any substance which is obtained by remixing, which results in combining different properties of the component, or producing any such substance
• Discovery of new use or property of already known substance, or use of known process, or machine unless the employment of such known processes results in a new products or at least one new reactant.
• The mere arrangement or rearrangement or duplication of known devices, each functioning independently of one another in a known way.
• Inventions relating to atomic energy.
• Algorithms, mathematical and business models cannot be patented.

How to obtain a Patent in India
A General Procedure-

• Filling an application for a patent and providing with sample or detailed specifications
• Filling detailed specifications if a sample specification is given with the original application
• Examination of the patent application by the patent office
• Application acceptance and publishing of such acceptance in the official gazette
• Ruling out the Opposition, if any, to the grant of a patent
• Sealing of the patent

Regulations for filling a Patent application
The necessary documents required for filling an application for the grant of a Patent are listed below :

• Application form has to be filled in triplicate. The provisional or complete specification has to be filled in triplicate. If provisional application is filled, then the complete specification has to be submitted within 12 months or 15 months including extension.
• If any drawing is a part of patent then it has to be filled in triplicate.
• Abstract of invention in triplicate.
• Information and undertaking listing the number, filing date and current status of each foreign patent application in duplicate.
• If a patent agent is involved for filing a patent, then Power of Attorney is needed.
• Fees for filing the patent through cash/cheque/demand draft.

Examination of Patent Applications
Nowadays the patent application is not examined alone but one has to file a requisition within 48 months from the date of application. After the patent applications are submitted with the complete specifications, they are examined thoroughly. The first examination report is communicated to the applicant(s) or to the agent, which states the objection(s). All the objections are to be met within 15 months from the date of first examination report. However 3 months extension period is available but the application for extension has to be filed before the expiry period of the initial 15 months.

The application stands abandoned if one fails to meet all the objections within the normal period along with the extended period of the application. Once the application is acceptable it is published under Part III of Section 2 in Gazette of India.

Grant of the patent
If the patent is not opposed within the stipulated time, the patent is granted to the applicant after reception of the sealing fees. The sealing fee is to be received in the period of six months which starts from the date of advertisement. This period however can be extended for three months.

Opposition
If the patent is opposed, the opposition has to be filed within 4 months of the acceptance of the Gazette. In addition to this, an extension of one month is available but the opposition must be applied before the initial period of 4 months is expired.

Patent Register
The patent registers are maintained by the head office and at its branch offices. It contains all the details regarding a patent for example patent number, renewal details, patentee address and names etc. One can get the required details from the offices by paying some prescribed amount.

Tenure of patent
The patent in India is valid for the period of 20 years from the date of application being filed. The responsibility of maintaining the issued patent lies with the patentee by paying the fees till the tenure of patent is complete.

Restoration
For any patent that lapses due to non payment of his/ her renewal fees, restoration is possible within 1 year. However some rights of the patentee will be curtailed or some limitations will be imposed. The period of one year for restoration starts from the day of application, if overdue fees are not cleared within the extension period of one year.

Infringement
Infringement refers to unauthorized use in producing selling or distributing any patented product(s)/ services, where patent is yet active. But for research, temporary or accidental use is not a part of infringement. Any use made by or for government purposes does not constitute infringement. But payment is made for such use on the pre agreed terms and conditions.

Protecting Patent Globally
There is no such law which can protect your invention internationally. You have to apply for patent in each country where you want to protect your invention. To facilitate the process, there are various regional and international patent treaties like Patent Cooperation Treaty (PCT), World Intellectual Property organization (WIPO) etc.