Patent Registration in India: A Complete Procedure
Typically, a patent is a right granted to the patentee for his/her intellectual property or invention for a limited time period. With the Patent Registration, a patentee achieves all the rights to control, use, sell, or import the patented product or process for producing that product.
Moreover, nobody else can use the patented product or process or technology without the consent of the patentee. In case anybody does so, then the patentee holds the right to sue that person. Hence, patent registration plays an important role in safeguarding the work/invention of anybody.
In this blog, we will discuss all the fundamental aspects related to the patent and Patent Registration.
What is Patent?
According to Section (2) (1) (m) of the Indian Patent Act, 1970, Patent means a patentgranted to any invention for somebody’s invention.Patent means giving an exclusive right to the inventor to stop others from using or making his/her invention. Furthermore, it gives the inventor the right to protect his/her process or product which is invented and can be further used for industrial applications.
If anyone tries to copy the invention which is patented under Section (2) of the Patent Act, or use the invention without being allowed to, the owner can sue the person in the court.
After the Patents (Amendment) Act, 2005, certain provisions relating to Exclusive Marketing Rights have been voided, and provision for providing a compulsory license has been introduced.
All the services or inventions stated under section (2) of the Indian Patents Act can only be patented; items or inventions mention under Section (3), and Section (4) cannot be patented.
The application of the Patent can be filed by one person or jointly or the inventors who want full control over their invention.
What can be patented?
There is no definitive listing of all the things that can be patented. But certain criteria should be met to get your invention patented. The main conditions state that the new process or product must involve an inventive step and should be capable of any kind of industrial application. Furthermore, the criteria include the following features as well:-
- Inventive non-obvious step-The invention must not be claimed by anyone in India earlier. It should be unique and different from the existing invention.
- Industrial applicability- The inventions can be patented only if it can further be used for industrial applications. The industrial applicability means that the invention is practically feasible and can be used in any kind of industry for its operations. The inventions cannot be patented for illegal and immoral uses.
- Novelty- The most important aspect of it is that the invention should be novel and cannot be earlier depicted by anyone orally or in the written form.
What cannot be patented?
Allthe items that are listed under Section (3) and Section (4) of the Indian Patents Act 1970 are not allowed to get Patent in India.
Section (3) exclusively mentions the following, which cannot be patented:
- An invention or idea which is frivolous or contrary to the already established natural laws/an invention whose commercial exploitation is against the public interest or can be harmful to human beings, animals, or natural laws/an application that a person uses to hack emails and accounts cannot be Patented in India.
- The discovery of existing phenomena like coal in different areas cannot be Patented. It is not an invention of a product or process but a mere finding regarding the existing theory.
- Mere discovery of any other use of an existing substance unless it results in the development of new and innovative products or processes.
- Duplication and rearrangement of known devices, who are functioning if different from each other in a much-known way cannot be Patented. It is Patentable if it results in the different usage of the combined product.
- The process for the surgical, medicinal, or any other treatment of human beings or animals cannot be Patented. For example, to cure a cancer person in a different way cannot be Patented. But, the systems installed or the treatment machines can be considered for the Patent right.
- Computer programs are not Patentable as its programming code is already protected under the Copyrights Act.
- A rule of playing a game or performing any mental activity is not registered under the Patents Act, 1970.
- Plants or animals, or any species, seeds or the biological process of production for plants and animals can also not be Patented under the Act.
- Any artistic work like music, literature etc. which includes work of cinematography and television production can be excluded from Patent registration as it is registered under the Copyrights Act.
- All the inventions regarding Atomic energy could be categorized under Section (20) (1) of the Atomic Energy Act, 1962.
What are the Different Types of Patents?
- Utility Patent–Utility Patent is granted to anyone who makes a new and useful creation in a machine, a process, or a product. Most of the people prefer to get their Patent registered as a Utility Patent.
- Design Patent-It is granted to anyone who develops or invents a new or innovative design for any product, process, or the machine. The only difference between the utility Patent and design Patent is that utility Patents focuses on the usage and creation of the invention while the product Patent focuses on the design of the invention or how it looks.
- Plant Patent-It is granted to anyone who has invented or discovered or asexually reproduced any new and distinct variety of plant.
- Reissue Patents-It is granted to anyone whowants correct any error in the already issued Patent.
What are the Benefits ofPatent?
- The benefits of the Patent to the Patentee are as follows:
- Right to use your invention in several ways or the way the patentee wishes to use and enjoy a monopoly on his/her invention.
- Allow others to make use of the patentee’s invention at your own price.
- To sell the invention during the term of Patent.
- The term of Patent is 20 years.
- To the Society:
- Better and innovative products available to consumers and customers.
- Freely available technology after the end of the term of Patent.
What are the Eligibility criteriato file a Patent application?
For filing a patent application, the applicant needs to fulfill the following criteria:
- Be any person to be the true and first inventor of the invention.
- Be any person who is the assignee of the person claiming to be the true and first inventor in respect to the right to make such an application.
- Be the legal representative of any deceased person who immediately before his death was entitled to make such an application.
- Be the legal representative of the inventor after signing the power of attorney.
What are Documents Required for the registration of Patent?
- 3 Copies of the application form
- Triplicate i.e. three copies of Provision or complete specification
- Three copies of drawing
- 3 copies of the abstract of the invention
- Information and undertaking listing the number, filing date, and current status of each foreign Patent application in duplicate.
- Power of attorney if filed through inventor agent.
- Fee in cash/by Demand draft/local cheque.
- Priority document if the priority date is claimed
- Declaration of inventorship, where the provisional specification is followed by a complete specification.
So, now that you fulfill all the criteria and have all the required documents for Patent Registration, you can now follow these steps to get your patent registered in India:
The first step is to do patentsearch before filing a Patent application. If the invention is found in earlier arts or close to the earlier arts, then it can be challenged by the Indian Patent office.
After conducting a thorough study regarding the prior inventions or arts, the invention would be written in techno legal language, known as specifications. With claim is the complete specification and without a claim is the provisional specification. The specification specifies the detail of invention, area of invention, and the method to perform an invention.
Under the third step, one can file an application related to Patent Registration in India. If the provisional specification is filed within 12 months, you have to submit the full specification. A Patent application consists of a series of forms prepared according to the Indian Patent Act, 1970.
- OrdinaryApplication- An ordinary application consists of provisional application and complete application or non-provisional application.
- PatentCooperationTreaty (PCT) - It helps the inventors in seeking international Patent protection for their invention. The PCT application consists of 2 phases:
- PCT (National Phase)-To grant the Patentprotection to the inventor in the specific country. Before entering the National Phase, the applicant must have Claims (if any), description, drawings, and Abstract of the invention.
- PCT (International Phase) - This is followed by National Phase PCT. The application fee for PCT is 470USD for large entities and 94USD for small entities.
- DivisionalApplication- The division application is to be filed when the examiner of the Patent application reveals more than one invention in the previously filed Patent application.
- ConventionalApplication- It’s an application filed in the Patent Office without claiming any reference to other applications in process with the Patent office. It is also called Non-provisional application and Ordinary Application.
- Patent of Application-An application made to change or to make modifications in the existing application regarding the invention.
Once you have filed the application for patent registration, it will be published in the journals and wait for the objections. If somebody raises an objection against the same, then the examiner will first examine the patent invention. Then, he will submit the report and the applicant has to submit the reply to the report of the examiner within 12 months of the issuance of the report.
Once the examiner is satisfied with the reply of the applicant towards the examination report, then the authorized body will grant the patent.