Read this blog to learn about patents in India. Also, learn how to protect ideas with patents
A patent is a property right granted to an individual or enterprise by a sovereign authority for an invention, innovation, product, process, design, etc. Government agencies manage the applications for patents and related paperwork to grant patents to eligible individuals. A patent not only safeguards individual rights but also prevents others from taking advantage of somebody else’s labour by selling, making, copying, or using the patented product or invention without the patent holder’s consent. To safeguard the innovation or invention from being stolen, used, or exploited by others, the best thing to do is file for a patent and protect ideas with patents. Although, it is a long-drawn process in India after the patent has been registered. The patent is provided for a specific period and can be restored/ renewed.
Patent Grant in India
After the patent application has been granted, a request for examination of the said application by the Indian Patent Office has to be made. After issuance of the first examination report, the applicant has to fulfil the requirements asked for by the authorities within twelve months. In case the requirements are not met, the application is not entertained any further. If the applicant removes the objections and fulfils the requirements, the patent is granted to the applicant, and the same is notified in the journal of the patent office.
Term of a Patent in India
In India, every patent is granted for a term of 20 years from the date of application. It does not matter whether the application contains complete specifications of the invention or provisional specifications. If the application is filed under the Patent Cooperative Treaty, the patent term (20 years) is considered from the priority date.
Rights Granted by Patent
If the patent has been granted for a product, then the owner of the patent can rightfully stop others from wrongfully making, using, selling, or importing the product without the prior consent of the patentee. If the patent is for a certain process, then people can be prevented from using this process or selling, using, or importing the product obtained by using the process.
What is not Patentable in India?
- Contrary to natural laws
- Contrary to law
- Contrary to morality
- Harmful to public health
- Based on abstract theory
- Regarding new use of a substance, machine, or process already in use
- Rearrangement or duplication of already present devices
- Method of agriculture/ horticulture
- Inventions concerning atomic energy
Filing for Patent by Foreigners in India
India is a signatory to the Paris Convention for the Protection of Industrial Property, 1883 and the Patent Cooperation Treaty, 1970, so a foreign entity too can apply for a grant of patent in India. According to the rules of the convention, if individual files a grant of patent in the country of the convention, a similar application can be filed in India for the same. The filing of the application in India should be done within twelve months from the date of filing in the convention country.
Opposing the Patent
There are two ways an opposition can be filed against the grant of a patent in India. They are:
- Pre-grant opposition
- Post-grant opposition
Any person can file a pre-grant opposition against the patent U/s 11A of the Patent Act, 1970. The pre-grant opposition application should be filed within six months from the date of publication of the application for patent. No fee is charged for filing a pre-grant opposition.
A post-grant opposition too can be filed against the granting of a patent. This has to be done within twelve months after the patent has been granted and published in the official journal.
Reasons for Opposition
Some reasons against granting the patent are listed below:
- If the patent has been obtained wrongfully
- If a grant of a patent has already been published
- The invention was already known and used in the country before a claim was filed
- The said invention is already known and has no new additions to it
- The claim does not come under the provisions of the Patent Act
- The information about the invention is Insufficient
- If the application for a patent is not made within twelve months from the date of the first application
- If the disclosure does not provide all specifications or the facts are not mentioned precisely
A patent must be renewed every year. The renewal fee can be paid yearly, or a one-time payment can be made for the entire tenure.
Restoration of Patent
A patent can be restored within 18 months after the term of the patent is over. An application to this effect with the prescribed payment/fee has to be submitted to the authorities. The request is notified in the official journal for processing.
Under the Indian Patents Act, 1970, any patentee wanting to apply for compulsory licensing of the patent may apply for the same. This can be done 3 years after the patent has been granted. The application should be sent to the controller of patents.
Factors Considered Before Granting a Compulsory License
The controller of patents needs to take into cognisance the following before granting a compulsory license.
- Nature of invention
- The time covered since the granting of a patent
- The measures are taken by the patentee to utilise the invention
- His/her ability to use the invention for the public advantage
- The capacity of the applicant to provide capital and work the invention to the advantage
- National emergency or other urgent circumstances
A compulsory license is not a matter of right. It can be obtained if certain conditions are fulfilled and the controller of patents deems it fit to grant the same.
We hope this article has provided a clear picture of how to protect ideas with patents. The practise of granting patents by the government is to safeguard the interests of inventors. A patent ensures that no misuse, exploitation, or make false claims about the invention, innovation, product, design, and process. It is strictly prohibited to sell, make, copy, or use the patented product without the patent holder’s consent.
Visit VakilSearch and get help from a registered patent agent for filing a patent grant.
- Things you need to know about Patent Protection in India
- How to Initiate Patent Search
- Steps to Patent an Idea in India