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FAQ Patents


1. What is Patent?
patent is legal monopoly granted by a statue of a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available only for a limited period of time. However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent.

2. Who may apply for a Patent?
According to the law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if it were obtained, would be invalid. The person applying in such a case who falsely states that he/she is the inventor would also be subject to criminal penalties. If the inventor is dead, the application may be made by legal representatives, that is, the administrator or executor of the estate. If the inventor is insane, the application forpatent may be made by a guardian. If an inventor refuses to apply for a patent or cannot be found, a joint inventor or a person having a proprietary interest in the invention may apply on behalf of the non-signing inventor.
3. What inventions are Patentable?
Only those inventions are patentable which are new, useful and must involve inventive steps compared to closest prior art. A new product or process, involving an inventive step and capable of being made or used in an industry. It means the invention to be patentable should be technical in nature and should meet the following criteria –
■ Novelty: The The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
■ Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.
■ Industrial Applicable: Invention should possess utility, so that it can be made or used in an industry.
4. What inventions are Non-Patentable?
Following inventions are non-petantable:-
■ An invention which is frivolous or which claims anything obvious or contrary to well established natural laws.
■ An invention, the primary or intended use of which would be contrary to any law or morality or injurious to public health.
■ The mere discovery of a scientific principle or the formulation of an abstract theory.
■ 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 atleast one new reactant.
■ 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.
■ The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way.
■ A method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture.
■ A method of agriculture or horticulture.
■ A process for the medical, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.
■ An invention relating to atomic energyIn the case of inventions relating to substances prepared or produced by chemical processes (including alloys, optical glass, semiconductors and inter-metallic compounds) & substances intended for use or capable of being used as food. Nopatent will be granted in respect of claims for the substances themselves, but claims for the methods or processes of manufacture will be patented.

5. What is Patent specification?
patent specification discloses the details of the invention for which the patentprotection is sought. The legal rights in a patent are based on the disclosures made in the specification. Specifications are of two kinds-
■ Provisional Specification: A provisional specification discloses incomplete invention or inventions requiring time to develop further. A provisional specification is usually filed to establish priority of the invention in case the disclosed invention is only at a conceptual stage and a delay is expected in submitting full and specific description of the invention. Although, a patent application accompanied with provisional specification does not confer any legal patent rights to the applicants, it is, however, a very important document to establish the earliest ownership of an invention. The provisional specification is a permanent and independent scientific cum legal document and no amendment is allowed in this. No patent is granted on the basis of a provisional specification. It has to be a followed by a complete specification for obtaining a patent for the said invention. Complete specification must be submitted within 12 months of filing the provisional specification. This period can be extended by 3 months. It is not necessary to file an application with provisional specification before the complete specification. An application with complete specification can be filed right at the first instance.
■ Complete Specification: The document, containing the detailed description of invention along with the drawings and claims is called as the complete specification. Also the description regarding prior art is included in the complete specification.
6. What is an invention/innovation?
■ Invention: An invention means a new product or process involving an inventive step and capable of industrial application.
■ Innovation: An Innovation means: The successful exploitation of new ideas in the form of a useful machinery or process, by any person, using own intellect is called as innovation. Every innovation may not be patentable invention but every invention is an innovation.
All the inventions are the innovations and are patentable, but all the innovations are not the patentable inventions.
7. Why should I protect my invention?
Patents are useful in preventing your competitors from exploiting your invention. You can force your competitors to design around your invention (if that is possible) which can cost them time and money. It may put you in a stronger position with other companies who have Patents in which you are interested. Customers are often impressed by ‘Patented Technology’ so patenting can have a positive role to play in your marketing strategy. Patents are often a good ‘keep off the grass’ warning to other businesses. Many competitors are now more aware of Patents and the consequences of being found to be infringing a Patent.
8. What is the term of a Patent in the Indian system?
In India, generally the term of the patent is 20 years from the date of filling for all types of inventions, irrespective of whether it is filed with provisional or complete specification. Date of patent is the date on which the application for patent is filed.
9. What are the steps involved in granting Patent?
First of all an application for a patent in the prescribed format along with a provisional specification containing the brief description of the invention has to be filed as early as possible to obtain a priority over the invention.
A complete specification has to be filed within 12 months from the date of original application. However, this period of 12 months can be extended by 2 months by making an application seeking an extension of time.
Once the complete specification is filed, the applicant has to make a request for examination of patent in the prescribed format. Request for examination in the prescribed format is to be filed after the publication of the application (present time limit is within 36 months). Application for patent is not open to public for 18 months from the date of filing or date of priority.
Patent Examiner will carry out a search for the novelty and prior art regarding the invention and a first examination report stating the objections will be communicated to the applicant. Application may be amended in order to meet the objections. All the objections must be met within 12 months from the date of first examination report.
After the Patent Office has examined an application and found that the patent can be granted, it publishes the title of the invention, name the applicant, abstract of the invention, drawings and claims in the Gazette and waits for objections. The interested parties have to oppose the grant of the patent within four months publication in the Gazette. An extension of one month is possible, provided a request for such extension has to be filed within the first four months.
When all the requirements of the Patent Office are met or in case of opposition, if the opposition is decided in favour of the applicant, the patent is granted, after 6 months from the date of publication, the letter patent is issued, entry is made in the register of patents and it is notified in the Patent Office, Journal, thereafter opening the application, specification and other related documents for public inspection on payment of prescribed fee.
10. What are the rights of Patentee?
patent grant gives the patentee the exclusive right to make or use the patented article or use the patented process. He can prevent all others from making or using the patented process. A patentee has also the right to assign the patent, grant licenses under, or otherwise deal with it for any consideration. These rights created by statute are circumscribed by various conditions and limitations.
11. What is opposition under the Indian Patents Act 1970?
After the Patent Office has examined the patent application and found it in order for grant of a patent, it publishes the title of the invention, name of the inventor(s) and the applicant(s), abstract of the invention, drawings and claims in the Gazette of India, Part III Section 2, for interested parties to oppose the grant of the patent. An application for opposition may be filed at the concerned Patent Office branch within four months of the date of the issue of the concerned gazette. An extension of one month is possible on a request for extension of time on payment of the prescribed fees, has to be made within the first four months. Typed or photocopies of the specification together with photocopies of the drawings, if any, can be obtained from the Patent Office, Kolkata or the concerned branch office on payment of the prescribed fees. One would like to oppose if the idea of the accepted application infringes upon one’s invention or existing patent.
12. Can Patent rights be transferred?
The proprietor of a patent or its registered grantee can assign, license or mortgage the patent for any consideration. This power is wide enough to include transfer of patent rights in whole or in part, or a licensing of patent whether exclusively to one person or several persons. The creation of any interest in apatent, including assignment, license or mortgage is not valid unless it satisfies the following requirements:
■ The assignment, mortgage or license is reduced to writing in a document and embodies all the terms and conditions between the parties.
■ The application for the registration of the document is filed within six months of its execution.
13. Is a patent granted in one country enforceable in other countries?
No. There is nothing like a global patent or a world patent. Patent rights are essentially territorial in nature and are protected only in a country (or countries) which has (have) granted these rights. In other words, for obtaining patent rights in different countries one has to submit patent applications in all the countries of interest for grant of patents. This would entail payment of official fees and associated expenses, like the attorney fees, essential for obtaining patent rights in each country. However, there are some regional systems where by filing one application one could simultaneously obtain patents in the member countries of a regional system; European Patent Office is an example of a similar system.
14. What is PCT?
The Patent Cooperation Treaty (PCT) is a multilateral treaty entered into force in 1978. If any inventor seeks patent protection in multiple countries, then PCT approach is recommended. The PCT provides a unified system through which one can apply for patent protection in member countries. Through PCT, an inventor of a member country, which is a contracting state of PCT can simultaneously obtain priority for his/her invention in all/ any of the member countries, without having to file a separate application in the countries of interest, by designating them in the PCT application. A single filing in PCT results in a single search accompanied with a written opinion, after which the examination and grant procedures are handled by the relevant national or regional authorities. The PCT does not lead to the grant of a patent valid in all member countries, though it reserves rights to seek patentprotection in its member countries.
India joined the PCT on December 7, 1998. All activities related to PCT are coordinated by the World Intellectual Property Organization (WIPO) situated in Geneva.
15. What is the need for PCT?
The PCT filing facility provides you to protect your invention with effect in several States, instead of filing several separate National and or regional Patents. In order to protect your invention in other countries, you are required to file an independentpatent application in each country of interest; in some cases, within a stipulated time to obtain priority in these countries. This would entail a large investment, within a short time, to meet costs towards filing fees, translation, attorney charges etc. In addition you are making an assumption which, due to the short time available for making the decision on whether to file a patent application in a country or not, may not be well founded.
The Treaty makes it possible to seek patent protection for an invention simultaneously in each of a large number of countries by filing an “international”patent application. Such an application may be filed by anyone who is a national or resident of a Contracting State (132 Contracting States). It may generally be filed with the national patent office of the Contracting State of which the applicant is a national or resident or, at the applicant’s option, with the International Bureau of WIPO in Geneva. Inventors of Contracting States of PCT on the other hand can simultaneously obtain priority for their inventions without having to file separate application in the countries of interest; thus saving the initial investments towards filing fees, translation etc. In addition the system provides much longer time for filing patent application in member countries. The time available under Paris Convention for securing priority in other countries is 12 months from the date of initial filing. Under the PCT, the time available could be as much as minimum 20 and maximum 31 months. Further, an inventor is also benefited by the search report prepared under the PCT system to be sure that the claimed invention is novel. The inventor could also opt for preliminary examination before filing in other countries to be doubly sure about the patentability of the invention.
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