It takes a lot of time, effort, and resources to order to make an invention. Therefore, a need arises to protect the interest of the inventor. A Patent ensures that such an invention is protected. A Patent is an intellectual property; it is the exclusive right over an invention. The one who owns a patent can curb others from using, making, or selling these inventions for a fixed period. The patentee will have complete ownership of the patent and can even surrender it or give the same to someone else in the form of a license. In any case, if the rights of a patentee are violated, he has the right to seek legal remedy.
DIFFERENT TYPES OF PATENTS
- Design Patent: This patent relates to the shape and size of an object; it provides protection only to the design of the object and not its composition. A few examples of design patents are the shapes of bottles, designs of cars, designs of a phone, etc
- Utility Patent: Where the design patent relates to the external aspect of an object utility patent relates to the internal composition of the object, this patent does not protect the design of the object but only its composition. Processors of computers, engines of cars, etc all fall under this type of patent
- Plant Patent: One can patent a newly discovered plant; however, this patent can only be taken for plants that are asexually produced i.e. through methods such as cutting and grafting. A patent cannot be taken for a naturally reproduced plant.
HOW TO FILE A PATENT
- The first step to register a patent is to file an application: An application can be filed through the following methods
- By Submitting an application at the head office of the patent office situated at the residence of the applicant or his place of business or where the invention was made.
- Through online mode
- Through post
- By hand
- File a request for examination: A separate request for examination needs to be made so that the examiner can examine the patent, without filling the same no examination of the patent would take place. The request for the examination shall be made within 48 months from the date of filing of the application or date of priority whichever is earlier, if such a request is not submitted then the application for the patent would be considered to have been withdrawn.
- Publication of patent: The patent application that is filed will be published in the patent journal after 18 months or one can request for an early publication. However, if the applicant wishes to withdraw the application, the same can be done 3 months before the end of the 18-month period. Once the application has been published, then the rights of the applicant start but the same can be exercised only after receiving the grant for the patent.
- Examination: Once the request for examination is submitted the same will be given by the controller of patents to the examiner within one month. The examiner will check whether the invention
- Is a product or a process?
- Is an original invention
- Includes an inventive step
- Can be used for industrial application
- Falls under the non-patentable inventions mentioned under section 3 and 4 of The Indian Patents Act, 1970.
Based on which the examiner will prepare a report this report is known as the first examination report. The same is submitted to the controller of patents, if the examiner has stated any objections in his report then the applicant must make changes in regards to these objections within 6 months. This process will carry on until there are no objections in the report of the examiner. The failure of the same will result in an automatic withdrawal of the patent application.
- Pre-grant Opposition: Anyone can file a pre-grant opposition based on the grounds mentioned in section 25(1) of The Indian Patents Act, 1970. The representation is filed to the controller of patents who then sends a notification to the applicant, the applicant is then required to submit a statement and evidence to the controller of patents within 3 months from the receipt of the notification. The controller of patents after careful examination of the statements and evidence submitted before him decides, either to reject the representation and give grant after requesting the applicant to make suitable changes or accept the representation and reject the grant. The controller is required to give the decision within one month
- Grant: Once the examination is done and the controller of patents is satisfied with regards to the legal aspects of the application the grant is given to the applicant. The patent will bear the seal of the patent office and will be entered in the patents register. After which the controller will publish the grant of the patent in the patent journal. All documents pertaining to the patent will also be made available for public inspection.
- Post-grant opposition: Anyone can file an opposition against the patent granted within 12 months from the date of publication of the patent, this is done by giving notice to the controller of patents, the controller then intimates the patentee about the opposition, the controller then refers the issue to the opposition board. The opponent must submit his statement and evidence. The same also needs to be done by the patentee within 2 months from the receipt of the notice else the patent will be revoked. Once the patentee gives his statement the opponent will be allowed to submit a reply and evidence. Once all these documents are given to the opposition board, the board will examine the documents and would prepare a report within three months. This report is then forwarded to the controller who then calls for a hearing between the opponent and patentee. Based on the hearing and the report submitted by the board, the controller decides either to amend the patent or revoke the patent or refuse the opposition.
The duration of a patent is for 20 years. It starts immediately after filing the patent application. The patent protection extends either till the expiry of the term or till the failure of the patent holder to pay the fee for the renewal of the patent. After the expiry of the patent period, the patent holder loses the right to exclusively be benefitted from the specific invention. Anyone can copy the invention of the patent holder and be benefitted from the same, thus the patent holder can no longer have monopoly control over the invention and will have to face competition from other competitors.
Patents act as a safeguard to prevent others from reaping the benefits of one’s effort in making an invention, it ensures that the patentee has complete control over his invention. The patentee holds all the rights with regards to the surrender, revocation, and licensing of the invention. However, this exclusivity to the use of an invention can only be enjoyed for 20 years after which it becomes accessible to the general public. The whole procedure for registering the patent involves detailed scrutiny of the invention to ensure that it complies with the set legal standards, regardless of the same the whole process is timebound to ensure that the registration of the patent is done promptly.
Author(s) Name: Tarul Joseph Thottungal (Kristu Jayanti College of Law)
- Indian Patent Law and Practice (Oxford India Paperbacks), 2012 Edition
- The Patents Act, 1970 – Bare Act 2020 Edition