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What is Patent Protection in India?

This blog will provide you with accurate information regarding what is patent protection, patent protection in India, and obtaining patent protection in India.

Introduction

As the name suggests, patent protection is the protection of an invention, idea, or innovation.  In India, one can protect an idea, invention, or creation by filing for a patent online via e-filing or manually submitting the application and related documents at any of the patent offices.  In India, a patent will be granted to the applicant for a 20-year period, starting from the date the applicant filed the patent application. Payment of renewal fees need only be made after granting the patent and has to be filed within six months of the date of grant for the period from the filing date to grant.  It can be paid annually or for the entire term of the patent.

What is Patent Protection?

There is a key role to be played by patent protection in enabling inventors to protect their inventions and not let others do the following with their inventions without having obtained prior permission for the one who has invented them:

  • Importing 
  • Making
  • Offering For Sale
  • Selling
  • Using

It is incumbent on the inventor to obtain patent rights to the invention; full disclosure must be made of the invention’s details.  This disclosure must be made in a patent document, and this document becomes available publicly. 

Patent protection is not granted to generally everything.  Here are the criteria for the situation in which patent protection shall be given:

Step 1:

 If the invention is new, implying that it was previously not known to the public – Novelty

Step 2:

 If the invention lends itself to industrial application – Industrial application

Step 3:

If the invention is seen to represent an inventive step from previously known – Inventive steps.

The foremost key in deciding if the new invention/product needs to be patent protected is, understanding the costs and benefits of patent protection. Registering for a patent and patent application can take anywhere from three (3) to five (5) years and will generally require some consulting and legal fees. So, it is a good idea that before applying for patent protection, a reality check should be made on whether it will be beneficial to prevent others from distributing, manufacturing, and/ or exploiting the thing under consideration. This has to be looked at in light of the costs incurred for the patent protection and prosecution.

Patent Protection in India

The patent laws in India are not the same as in other countries of the world.  All nations will have their laws for patent protection.  The Indian patent law considers some subject matters ‘, not an invention’. According to the Indian patent law, if you discover any non-living or living thing found in nature, it shall not be an invention. For example, any invention on an isolated substance, like isolated proteins, shall not be seen as an invention. If there is a second use or new use for, for example, a medical drug that already has a known use in India, it will not be taken as an invention. Taking another example from medical science, if there is a new polymorph or some known drug’s new salt, it can be patent protected in India if the drug’s ne form is established to depict that it has enhanced performance compared to the drug’s known structure. According to the Indian patent law, if a known substance’s new function or property is discovered, it will not be taken as an invention.

Furthermore, an admixture of known substances is not considered an invention in India till they depict more than just an additive effect.  The list of what is regarded as an invention and what is not is one.  This is one of the reasons that a person wanting patent protection must seek the help of experts in the field of patent protection so that the patent protection is not rejected after being filed.

Apply for Patent in India Online

Obtaining Patent Protection in India

To obtain patent protection in India, one must file an online application or a manual at any office. 

One can file a patent application in the form of an ordinary national application, but it must comply with the provisions set down by the Patents Act, 1970.  

According to the Patents Act, such countries that are signatories to an international, regional or bi-lateral treaty, convention or arrangement are allowed privileges for proper patent protection just as would be in their country, provided that India has also signed those treaties or has been party to the conventions or arrangements and is supplied with the same protection in that specific country. 

For a convention country, it is allowed that an application is filed in India within a year of the date of the application having been filed in a convention country.

India got membership in the Paris Convention on 7 December 1998, and it is one of the 176 contracting states. An applicant can apply for 31 months in India from the earliest priority date based on the International Application submitted to WIPO. Requesting for examination could be done when using or filing / from the earliest priority date.

To request an early publication of the patent protection, one must fill out Form 9 and submit both it and the required fee. After it is published, the application becomes open for pre-grant opposition. 

Similarly, right from the publication date, the patent becomes open for pre-grant opposition. It is also possible to file for a post-grant opposition,n but it must be done within 12 months from the grant date.

The Indian Patent Law grants a patent for 20 years starting when the patent application was filed. The payment of the renewal fees is only to be done after the granting the patent, and it needs to be filed within six months of the grant date and is to be for the duration of the date of tiling till the grant of the patent. It can either be paid annually or the entire patent term. 

A petition can have a patent revoked.   The petition can be filed based on Section 64 of the Patents Act, 1970. It can be filed by:

  • any interested person
  • Central Government 
  • a counter-claim via filing suit for patent infringement by the High Court
  • other grounds based on Section 64 of the Patents Act, 1970.

One can initiate a suit for patent infringement in a High Court or District Court of India.

Conclusion

Like most nations of the world, India also has its patent protection law, which is not the same as in other countries.   Those applying for patent protection in India must have a thorough knowledge of the law.  But it is always a good idea to consult with such entities that can provide the best guidance from the very start and steer the applicant in the right direction.  

Read More Related Articles:

How to Conduct a Patent Search?

Why Do You Need an Expert for a Patent Search?

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