A utility patent is a legal instrument that grants inventors exclusive rights to their inventions, preventing others from making, selling, or using them for a set period. This blog deals with the basics of a utility patent, the steps involved in filing, and its duration. Additionally, we'll distinguish between utility and design patents as well.
A patent is a new idea that might be a unique product or process converted into a workable invention. Sometimes you need a patent attorney to file the patent. The inventor herein is granted the exclusive rights to manufacture and sell the product, thereby preventing others from doing the same. A patent right is, therefore, a negative right, as it prevents the rest of the world from exploiting the patented invention commercially. Also, patent rights are not absolute. The Patent Act of 1970 strikes a balance between establishing the rights of the patentee and the interests of the general public. Holding this in mind, a patent should be drafted so that the inventor can claim the invention but must not go far and beyond and claim anything and everything under the sun.
Introduction:
In the realm of intellectual property, the utility patent stands as a significant protector of inventors’ rights. Especially in India, where innovation is at its peak, understanding the nuances of a utility patent becomes crucial for inventors and businesses alike.
The Basics of a Utility Patent:
A utility patent, commonly referred to in India as a “patent of invention,” safeguards new and inventive processes, machines, manufactures, and compositions of matter. In simpler terms, it protects the function and operation of an invention, rather than its mere aesthetic appeal.
How to get a utility patent
Research and Ensure Novelty: This initial step is crucial. By utilising the Indian Patent Office’s database and other patent search tools, inventors can ascertain if their invention is genuinely novel. It helps avoid potential disputes and ensures you’re not infringing on existing patents.
Prepare Detailed Specifications: An invention’s specification acts like its blueprint. It comprises a detailed written description, accompanying drawings (if necessary), and methodological steps for the creation and operation of the invention. Crafting a precise and comprehensive specification is vital for clear understanding and future references.
Submit Required Forms and Fees: The Indian Patent Office has various forms for different stages and types of inventions. Along with these forms, a stipulated fee, based on the nature of the applicant (individual, startup, small entity, or large entity), is to be paid.
Filing a utility patent:
While taking your idea from conception to patent might seem really hard, India’s systematic process provides clarity. Inventors have the option to file a provisional application if their invention isn’t yet complete. This provides a 12-month buffer to refine the invention and file a complete specification. This two-step process not only secures a priority date (the date from which the patent rights begin) but also offers flexibility to inventors.
Staking your claims:
Imagine your patent as a piece of land; the claims then act as its boundaries. Crafting the claims requires precision, as they demarcate the exact scope of your invention’s protection. They need to be comprehensive enough to cover the invention’s breadth but specific enough to fend off potential infringers. In India, the drafting of claims is an art in itself, often requiring experts to ensure clarity and robust protection.
How Long Does a Utility Patent Last?
In India, a utility patent is not perpetual. It provides protection for 20 years from the filing date. However, there’s a caveat: annual renewal fees. These fees ensure the continuation of patent rights. If not paid, the patent can lapse, leading to loss of protection. After the 20-year span, the invention becomes public property, allowing anyone to use or manufacture it.
How Does a Utility Patent Differ From a Design Patent?:
While both utility and design patents fall under the umbrella of intellectual property, they serve different purposes. A utility patent, as discussed, covers the functional aspects of an invention. In contrast, a design patent focuses on the ornamental design of an object. It could be about the unique shape of a bottle, the pattern on a fabric, or any other non-functional visual attribute. The protection period for design patents also varies from utility patents, typically lasting for only 10 years in India.
To know more about Patent Application India
Do I need a Vakilsearch Patent Attorney to File a Patent?
The short answer is Yes.
When an inventor comes up with a revolutionary invention, the next logical step is to file a patent as soon as possible. But whom should the inventor approach to get the job done? More importantly, should the inventor even approach anyone to get it done? The Patents Act of 1970 mentions that a patent can be drafted and filed by the true and first inventor. The Act nowhere mentions that bringing a patent attorney into the picture is mandatory. There are instances wherein the inventors themselves draught and filed their patents. After all, no one would know the invention better than its inventors.
Furthermore, when individuals or indigenous start-ups intend to file patents, they are forced to think of cost-cutting. To save on attorney fees, many inventors try their hand at drafting and filing their patents. To them, the attorney fee is an added burden along with the charges for the application fee.
On the other hand, the process of getting a patent granted is not child’s play. It might be too risky for inventors, who are often amateurs at drafting patents, to take patent filing into their own hands. We only wish it was as simple as taking a random application form, filling in the details, and submitting it within 30 days, TA-DA! The patent miraculously appears before the inventor. Unfortunately, reality bites! Getting a patent granted, not to mention the cumbersome processes of examinations, office actions, and hearings, is complicated and extremely time-consuming.
The inventor would indeed be well-versed in the technical details of the invention. But a patent specification, where the claims are drafted, is a techno-legal document and has to be drafted in line with the Patent Act of 1970. An inventor might not have the in-depth legal expertise to draught the patent specification. An inventor might still try drafting the patent by browsing search engines and gathering the necessary techniques to make it through. But it won’t be too late before the inventor realises that a patent specification differs from a dissertation or a thesis report.
Patent specifications are complex and demand intricate detailing. Making the claims too broad would affect the interests of the public, and making them too narrow would not provide effective protection for the invention. This could make the entire research and the resources spent on the invention futile. Further, the inventor loses the competitive advantage, and the invention could fall into the public domain. Besides that, it’s a techno-legal document with many legal compliances to be adhered to. The specification must be in line with the Patent Act of 1970, the Patent Rules of 2003, and other general guidelines.
Therefore, a patent professional, say a patent agent or a patent attorney, must step in under these circumstances. A patent professional will draught the specifications so that the invention gets maximum protection. Also, care would be taken to ensure that the invention does not infringe on existing patents. A seasoned attorney would draught the claims in a way that could tackle any invalidation attacks in the future. Apart from the claims, the complete specification must encompass all the embodiments of the invention. Every claim mentioned should be supported in the description of the specification. Unfortunately, an inventor cannot pick up these nuances overnight.
Also, getting a patent granted depends not only on a well-drafted specification but also on responding to office actions and attending hearings promptly. A patent attorney than the inventor could better handle this. The inventors need to execute a power of attorney favouring the patent attorney to represent them in matters pertaining to the invention. Also, the inventor might wish to apply for patents in other countries, as a patent is a territorial right. Most patent attorneys have tie-ups with foreign patent attorneys or firms and could start the process immediately. Most patent agents and attorneys are science graduates who can easily understand and collaborate with the inventor. Therefore, a prudent inventor must decide to hire a patent attorney to take care of the drafting, filing, and other legal formalities and invest precious time in improvising the invention.
Inventors must prioritise both their needs and costs while applying for a patent. Keeping an attorney away at this juncture to save expenses could put the invention on the line. Writing a patent specification is an art, and it is done best when entrusted to patent professionals. You can reach out to Vakilsearch for any patent-related assistance.
Conclusion:
Navigating the intricate waters of utility patents in India requires understanding, precision, and due diligence. However, the effort is worth the reward: a two-decade shield protecting your invention. By understanding the nuances, filing procedures, and distinct differences between patent types, Indian inventors and entrepreneurs can build a culture of innovation, knowing their intellectual endeavours are safeguarded. Most importantly, if you have any queries or clarifications, feel free to contact our legal experts at Vakilsearch.
Helpful Links
- What Is the Timeframe of a Provisional Patent?
- Issues of Patents in Public Health
- What Are E-Commerce Patents
