What is a Patent ?
A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention by excluding others from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.
Does Indian Patent give protection worldwide ?
Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent that is valid worldwide.
What can be patented ?
An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under section 3 and 4 of the Act.
Who can apply for a patent ?
A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.
What is the term of patent ?
Term of every patent in India is 20 years from the date of filing of patent application, irrespective of whether it is filed with provisional or complete specification. However, in case of applications filed under PCT the term of 20 years begins from International filing date.
What are the criteria of patentability?An invention to become patentable subject matter must meet the following criteria -
Should application for patent be filed before or after, publication of the details of the invention ?
The application for patent should be filed before the publication of the invention and till then it should not be disclosed or published. Disclosure of invention by publication before filing of the patent application may be detrimental to novelty of the invention as it may no longer be considered novel due to such publication. However, under certain conditions, there is grace period of 12 months for filing application even after publication.
Can any invention be patented after publication or display in the public exhibition ?
Generally, a patent application for the invention which has been either published or publicly displayed cannot be filed. However, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organized by the Government or disclosure before any learned society or published by applicant. The details conditions are provided under related laws.
Does the Patent Office Keep information of the invention Secret ?
Yes. All the patent applications are kept secret up to 18 months from the date of filing or priority date whichever is earlier and thereafter they are published in the Official Journal of the Patent Office which is published every week and also available on the IPO website. After its publication, public can inspect the documents and also may take the photocopy thereof on payment of the fee as prescribed.
When an application for patent is published ?Every application for patent is published after 18 months from the date of its filing or priority date whichever is earlier. However, following applications are not published.
Is there any provision in the law for early publication ?
Yes, the applicant can make a request for early publication in Form 9 along with the prescribed fee. After receiving such request, the Patent Office publishes such application within a period of one month provided the invention contained thereon does not relate to atomic energy or defense purpose.
Is patent application once filed is examined automatically?
The patent application is not examined automatically after its filing. The examination is done only after receipt of the request of examination either from the applicant or from third party.
Is there any provision for early examination ?
There is no provision for filing a request for early examination. The applications are examined in the order in which requests for examination are filed. However, an express request for examination before expiry of 31 months can be made in respect of the applications filed under Patent Cooperation Treaty known as National Phase applications by payment of the prescribed fee.
What happens to a patent application once it is examined ?
After examination, the Patent office issues an examination report to the applicant which is generally known as First Examination Report (FER). Thereafter the applicant is required to comply with the requirements within a period of twelve months from the date of FER. In case the application is found to be in order for grant, the patent is granted, provided there is no pre-grant opposition is filed or pending. A letter patent is issued to the applicant. However, in case a pre-grant opposition is pending, the further action is taken after disposition of the pre-grant opposition.
What happens when applicant is not able to meet the requirement within the prescribed time ?
If the applicant is not able to comply with or meet the requirement within 12 months, or does not submit the documents which were sent to him for compliance within the given period, the application is deemed to have been abandoned.
Is there any provision for extension beyond time limit of 12 months ?
There is no provision for extension of time, beyond the period of 12 months.
Does applicant get an opportunity of being heard before his application is refuse ?
If applicant has not complied with the requirements within the prescribed time, and no request for hearing has been made by the applicant, the controller may not provide the opportunity of being heard. However, the Controller shall provide an opportunity of being heard to the applicant before refusing his application if a request for such hearing has been made by the applicant at least 10 days in advance before expiry of the statutory period.
What are the various stages involved in the grant of patent ?
After filing the application for the grant of patent, a request for examination is required to be made by the applicant or by third party and thereafter it is taken up for examination by the Patent office. Usually, the First Examination Report is issued and the applicant is given an opportunity to correct the deficiencies in order to meet the objections raised in the submitted report. The applicant must comply with the requirements within the prescribed time otherwise his application would be treated as deemed to have been abandoned. When all the requirements are met, the patent is granted and notified in the Patent office Journal. However, before the grant of patent and after the publication of application, any person can make a representation for pre-grant opposition.
Can one use the words "Patent Pending" or "Patent Applied For" ?
These words are normally used by the patent applicant to their products after filing his application for patent so that the public is made aware that a patent application has been filed in respect of that invention. Use of these words, where no application has been made, is prohibited under the Patent law. However, use of such words by the patent applicant does not prohibit the third party to plead as innocent unless the patent number is indicated.
How useful is the marking of a product with "patent pending" or "patent applied for" before the grant ?
Marking of a product with the words “patent pending” or “Patent applied for” after filing of the application for patent serve as a notice to the public that an application for patent is pending with the Patent Office but there is no legal significance of these words. The infringement action can be initiated only after the patent is granted.
How can one find out that an invention is already patented ?
The person concerned can perform a preliminary search on Patent Office website in the Indian patent data base of granted patent or Patent Office journal published every week or by making search in the documents kept in the Patent Office Search and Reference Room, which contains Indian patents arranged according to international patent classification system as well in serial number. It is open to the general public from Monday to Friday, except Gazette holidays.The public can also conduct search free of charge on the website of Patent Office. The person concerned can also make a request for such information under section 153 of the Patents Act
What are obligations of the patentee after the grant of patent ?
After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed in the schedule I. For first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will be ceased.
Can the patentee pay renewal fee at a time or has to pay every year ?
The patentee has choice to pay the renewal fees every year or he can pay in lump sum as well.
When a patent can be restored after its cessation ?
A request for restoration of patent can be filed within 18 months from the date of cessation of patent along with the prescribed fee. After receipt of the request the matter is notified in the official journal for further processing of the request.