Patent Laws in India

A patent is a government authority or license conferring a right or title for a set period, exclusively the sole right to exclude others from making, using, or selling an invention. A patent gives you the right to stop others from copying, manufacturing, selling or importing your invention without your permission. You get protection for a pre-determined period, allowing you to keep competitors at bay

Intellectual Property

It is the property that is “intangible” and is created by the mind of the human intellect. It is of 4 basic kinds- patents, trademarks, copyrights, trade secrets.

Patents

A patent is a formal allowance from the Indian government for a specific period, bestows an exclusive right for the manufacture, marketing, and operation of the creation for which a patent is granted. The Patents Act, 1970, is the primary law that deals with patents in India. The act was amended by the Patents (Amendment) Act, 2005.

Reasons to Get a Patent

• Enjoy exclusive privilege on the product
• It provides a pecuniary return for the time, efforts, and money spent on the making of the invention

Conditions Required For a Product to Be Patented

• The product should be either of the 5 “Statutory Class.”

1. Process
2. Machine
3. Manufacture
4. Composition of material
5. New use of any of the above

• There must be a use of the new product.
• The product must be “New/Novel.”
• The product must not be obvious and must involve some original process.
• The product must not fall under section 3 or 4 of the Act.
• Section 3 deals with the products which are not inventions.
• Section 4 deals with inventions relating to atomic energy not patentable.

Kinds of Patent

1. Ordinary Patent– Such a patent is normally obtained by applying section 6(1) of the patent act.
2. Patent of Addition– It is a patent for an improvement in or modification of an invention for which a patent application has already been made or it has been granted. Section 54 and 56 contain provisions regarding it.
3. Patent of the Convention– This type of patent is granted to persons outside India who are based in a country that has a convention, treaty, or arrangement with India for grant of patents on a reciprocal basis to Indian applicants under section 133. The convention countries are to be specified by notification in the official gazette by the central government. 

Patents Can Also Be Classified Into Two Types

1. Product Patents– A product patent is granted to the original inventor of the product. After granting a patent he can sell and distribute the product in-country.
2. Process Patents– It is granted to a particular process and not to the end product. The exclusive rights are only for methods of manufacturing products.

Term of Patent

The term of patent in India is 20 years from the date of filing of the application, subject to the payment of annual fees. (This term was introduced by the Patents (Amendment) Act, 2002)

Expiry of Patent

1. On the completion of the term
2. On non-payment of renewal fees
3. When an application is made to the patent office or the court, challenging the validity of the patent
4. Expiration of the patent

Process of Obtaining a Patent

1. Filing of an application to the patent office and paying the specified fees
2. An examiner conducts a thorough examination of whether all the conditions are fulfilled, and only then the application is accepted.
3. On the same day, an application number and cash receipt are issued to the applicant.
4. If the application number and cash receipt need to be sent by post, it must be done within 2 to 3 days.
5. The application must not be disclosed for 18 months from the date of filing. 
6. After the lapse of 18 month’s periods, the application will be published in the official journal. However, on the appeal of the applicant, it can be posted within one month also.
7. The examination is conducted on request from the applicants or by someone else. The request must be made within two years from the date of filing of the application.
8. The examiner submits a report to the controller within 1-3 months.
9. The controller assesses the report within one month from the date of submission of the report to him.
10. All the objections are mentioned in the First Examination Report (FER). It must be prepared within six months.
11. The applicant can make all the changes in respect to the objections mentioned in the first examination report within 12 months.
12. When changes are made, and the controller is satisfied, the grant is to be given within one month.
13. Certification is given within seven days, and a publication is made in the official journal.