A Patent is a statutory right for an invention granted for a limited period to the patentee by the Government, in exchange for full disclosure of his invention for excluding others, from making, using, selling, or importing the patented product or process for producing that product for those purposes without his consent.
Any invention relating either to a product or process that is new, involving inventive steps, and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non-patentable under sections 3 and 4 of the Act.
The term of every patent granted is 20 years from the date of filing of the application. However, for applications filed under the national phase under Patent Cooperation Treaty (PCT), the term of the patent will be 20 years from the international filing date accorded under PCT. To boost your knowledge, read the important questions below:
What are the criteria for patentability?
An invention is patentable subject matter if it meets the following criteria
- It should be novel.
- It should have inventive steps or it must be non-obvious
- It should be capable of Industrial application.
- It should not attract the provisions of sections 3 and 4 of the Patents Act 1970.
Who can apply for a patent?
A patent application can be filed either by the true and first inventor or his assignee, either alone or jointly with any other person. However, the legal representative of any deceased person can also make a patent application.
How can someone apply for a patent?
India has four patent offices located in Kolkata, New Delhi, Mumbai, and Chennai. Each office has a separate territorial jurisdiction. The appropriate office for all proceedings including the filing of the application depends normally on where the applicant/first mentioned applicant resides/has domicile/has a place of business/has an origin of the invention. In the case of foreign applicants, it depends on the address for service in India given by such applicants.
A patent application can be filed with Indian Patent Office either with the provisional specification or with complete specification along with the fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the provisional application. There is no further extension of time to file complete specifications after the expiry of said period.
One can also file patent applications through a comprehensive online filing system ( Click Here for a direct link to Government Website ) More information for filing online applications is available on the website of the Patent Office.
Important to note: To register for filing of the patent application, the user is required to obtain the Class II/III digital signature. After obtaining the digital signature, the user can register himself on the CGPDTM website by creating his user ID and password. To obtain a digital signature, refer list on the government website ( Click Here to view )
Types of Application
The types of applications that can be filed are:
A) PROVISIONAL APPLICATION
Indian Patent Law follows the first file system. A provisional application is an application that can be filed if the invention is still in the experimentation stage. Filing a provisional specification provides an advantage to the inventor since it helps in establishing a – priority date for the invention. Further, the inventor gets 12 months to fully develop the invention and ascertain its market potential, and file the complete specification.
B) ORDINARY APPLICATION
An application for a patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. Such a type of application is known as an ordinary application.
C) CONVENTION APPLICATION
An application for a patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries is known as a convention application. To get convention status, an applicant should apply to the Indian Patent Office within 12 months from the date of the first filing of a similar application in the convention country.
D) PCT INTERNATIONAL APPLICATION
An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty is an international application that can be filed in more than 150 countries by a single application.
E) PCT NATIONAL PHASE APPLICATION
When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.
F) PATENT OF ADDITION
When an invention is a slight modification of the earlier invention for which he has already applied or has obtained a patent, the applicant can go for a patent of addition if the modification in the invention is new. One of the benefits of filing a patent of addition is that there is no need to pay the separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.
G) DIVISIONAL APPLICATION
When an application claims more than one invention, the applicant on his own or to meet the official objection on the ground of plurality or distinct invention may divide the application and file two or more applications, as the case may be for each of the inventions. This type of application, divided out of the parent one, is known as a Divisional Application. The priority date for all the divisional applications will be the same as that of the main (the Parent) Application (Ante-dating).
When should an application for a patent be filed?
An application for a patent can be filed at the earliest possible date and should not be delayed. An application filed with provisional specification, disclosing the essence of the nature of the invention helps to register the priority of the invention. Delay in application filing may entail some risks such as (i) some other inventor might file a patent application on the said invention and (ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her.
Does the Indian Patent give protection worldwide?
No. Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of a global patent. However, applying in India enables the applicant to file a corresponding application for the same invention in conventional countries or under PCT, within or before the expiry of twelve months from the filing date in India. Patents should be obtained in each country where the applicant requires protection for his invention.
Found this information relevant? You can have access to more such important information at the MSME HelpDesk website and its social media pages. Follow MSME HelpDesk on LinkedIn and Facebook to enrich your knowledge and enhance your network.
