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PATENT: Your invention is yours alone!
Introduction to Patent Law!
“Necessity is the mother of all invention; doubt is the father of invention.”
Imagination leads to creation. When you create something that has never been made before, it becomes your right to gain exclusivity over it and your responsibility to protect it. This right is granted under The Patents Act, 1970.
If you are the first & true inventor of a product or a process, the government shall grant you a patent over it. Such patent rights granted to you give you an exclusive access over the make, use and sale of such product or process. No one else can use your patent in any manner without taking your prior permission.
Any invention can be patented. In India, a Patent could be granted to either a product or process by which such product is created. However, it should always be kept in mind that the invention must be useful, new, novel and non-obvious.
In addition to the above prerequisites, it should be an “upgrade” in comparison to existing inventions.
The Patent Act states that an invention must be something that has not fallen in the public domain before.
Also, the patent should be capable of industrial application i.e. it must be practical and should be useful. In case it is a process that has to be patented, then the invention must be such that increases its usability.
A patent is granted for a period of 20 years from the date of filing the application for a patent. After the term has lapsed, you can pay a yearly fee henceforth, to renew your patent. If the fee is not paid on a timely basis, then the patent will be open for public domain i.e. the general public will be free to use your invention without your permission.
A patent which you obtain in India is operational within the territory of India.
To gain a worldwide patent over your invention, you’ll need to file a patent application with World Intellectual Property Organisation (WIPO) or any regional patent office under the Patent Cooperation Treaty (PCT) which governs international patent grants.
Until you don’t get a patent, your invention isn’t really yours!
The law intends to give you a monopoly over your creation because it’s you who has put in so much mind, time and effort to make a product that it is. So you are fully entitled to enjoy the fruits of your labour. No one else should have the right over such property until and unless they take a prior permission.
To obtain a patent over your invention, you need to fulfill the following conditions-
- You need to make full disclosure of your invention which includes the process by which you derived it.
- The invention must be non-obvious, novel and new.
- You’ll need to file an application to obtain a patent.
- A proof of ownership of invention.
- Other supporting documents.
As of 2007, an online platform has been enabled to file e-applications online. Other than that, you can approach any of the five intellectual property offices present in major cities in India, namely New Delhi, Mumbai, Chennai, Bengaluru and Ahmedabad.
A patent is a type of an invention that forms intellectual property.
A patent is granted with respect to any extra ordinary discovery or invention only. It is a right given to the owner of an invention and prevents others from making or using such invention. The term of a patent is 20 years. Patents can only be obtained for product or processes and not services. To be patented, an invention must have “novelty, an inventive step and industrial application”.
The invention to be patented should be non-obvious for any person involved in the relevant field.
Example: A new invention like a rice sieving machine could be patented if a person invents such a machine to sieve rice which has never been worked upon before.
Mere scientific principles, theories, software etc are not patentable. Also, patent obtained in one country is not enforceable in another country. A patent could be for an invention that already exists and is already in use, and has additional features which help in saving time, cost of the process, effectiveness, etc.
Contents of patent application:
- Title (maximum 15 words)
- Background (prior art, deficiency in prior art etc.)
- Drawings and models
- Claims in patent
If the final draft of a patentable work is not yet created then a provisional specification could be filed. The provisional specification freezes the date for considering the prior art. However, within 12 months of filing a provisional specification, the complete specification must be filed.
Not every invention can be patented! Patent laws are one of the strongest Intellectual Property Laws and lay down a few characteristics of an invention which can and cannot be subject to a patent registration. Since Patent deals with inventions, to define what is patentable and what isn’t, is important.
Section 3 of the Patents Act, 1970 excludes inventions/things which are not patentable:
- Any invention which is frivolous, or which is very obvious, contrary to law is not patentable.
- If the invented product cannot be used for commercial purpose then it cannot be patented
- Anything invented which is contrary to the law of land/nature or prejudices any human or animal is not patentable.
- The mere discovery of a scientific principle or the formulation of an abstract theory, or any mathematical formulae/algorithms etc.
- Mere modification or enhancement in an already existent invention.
- A method of agriculture or horticulture
- Any new method developed of treatment, surgery of human or animals etc.
- A presentation of information
- Topography of integrated circuits
- Any invention of traditional knowledge
- Any aesthetic creation.
Section 4 of the Act says that in case of any invention relating to atomic energy, no patent is allowed.
Anything apart from as stated above which are exclusively debarred from being patented, can be patented. However, the patented work should be an innovative and creative step not worked upon in past and commercially viable.
Example: if a person has invented a bicycle generator then it has possibility to be a patented as:
- Bicycle generator is an altogether new innovative step
- It can be commercially exploited in the world where people are drastically moving towards paddling to and from work rather than using motor vehicle.
Ideas, theories, concepts, if not converted into a product or process, cannot be Patent. In addition to the above, software, source code or algorithms cannot be patented either. However owing to constantly growing technology, software patents are allowed for softwares which can be combined with a tangible hardware device for the purpose of utilizing it.
Every new vision needs immediate protection. One should patent his/her inventions to be able to claim all the rights in it, if in future any dispute arises pertaining to the origin or development of the inventive product. There are various reasons for patenting:
- Patents provide exclusive rights to use the invention for 20 years. Further it can be renewed.
- If the inventor is using the invention for market purposes or commercialization then patenting it would provide a strong legal standing and rights in it.
- In order to restrict competitor from using your ideas without prior permission, patenting is important. Licensing is yet another option to legally authorize a person to use your invention with or without conditions. Credibility is a very important factor. By patenting any new invention it gets credibility and the product becomes far more reliable. A market fact is that when an invention is marketed as having being patented, it attracts a lot consumers to itself.
- To a large extent, a company’s corporate value relies on the intellectual property it owns. Thus, for any company which is having its employees working in inventions, it is must to get them patented.
- The most popular reason to apply for patents is the possibility to earn licensing money, although in some fields (particularly pharmaceuticals) exclusivity is the most important reason.
Thus, patenting gives exclusive rights to the inventor to register the inventions as belonging to him/her and to restrict the people from illegal use or marketing of the invention.
When you have spent a great deal of time and energy creating something new, it is in your best interest to protect it from letting anyone else use it without your permission or knowledge. A patent is the right granted to you by the government for a specific period of time, which prevents anyone else from using, selling or manufacturing your invention.
You must beat the clock and obtain a patent for your invention as early as possible because there is no guarantee that someone won’t come up with the same idea and get it patented before you. The Indian Patent law lays down a simple procedure to obtain a patent for your invention. The procedure includes the following steps-
- Collate all the necessary information about your invention to be Patented which includes the description, usage, advantages, diagrams, depictions, pictures, etc. which clearly states the purpose of the invention.
- Ensure your invention is patentable and that it does not come under any restricted category.
- Find out if your invention comes under the ambit of ‘patentability’ as per the law i.e. novelty, non-obviousness and industrial application.
- Conclude whether you want to continue with patenting the invention after checking all of the above steps.
- Draft your application to obtain a patent. It is crucial to include the vital information about the invention in your application so that it passes all the criteria on examination and gets published.
- If upon examination, objections are raised on your application, then respond and resolve such objections.
If, after completing all these steps, your application is accepted and your invention is found to be patentable, you are granted a patent for a period of 20 years from the date of your application which can be renewed after paying an annual fee.
A Patent right is a jurisdictional right. When a person is granted a patent for his invention, it prohibits anyone from the use, sale and production of the invention. In India, a patent is granted to a person for 20 years and an annual fee has to be paid to keep the patent.
A patent registered in India is not applicable in any other country. Patents are granted on a territorial basis. This means that a patent registered in one country does not apply to any other country. There is no patent guideline or law that would grant a universal patent. Separate applications can be filed by the person in different countries within 12 months of filing an application in India to get his invention patented.
There is no guarantee that the person would be granted a patent in all countries. Each country can accept or reject the patent application if it does not comply with the country’s laws.
To make things easier for the innovator, there are certain international treaties and conventions which lay down rules for member countries. One such rule is an application under the Patent Cooperation Treaty (PCT) for an international recognition of his patent application. This application has to be filed by a person in a receiving office of his member country. It is necessary to understand that it is only a worldwide application and the application may or may not get accepted in a country.
There is no law in India or anywhere that can grant a patent which is applicable worldwide. An international application which reduces the nuisance of filing different applications provides somewhat a relief to the applicant.
In India, the term of patent is 20 years from the date of filing the patent application. It could be filed with provisional or complete specification. Article 33 of TRIPS (Trade-Related Aspects of Intellectual Property Rights) provides for a term of 20 years. Thus, majority of the countries which are signatories of it follow 20 years norm. India is a signatory too.
Renewal of patent:
However, the patent period 20 years, the patent holder has to renew the patent term after the end of each patent year. A nominal renewal fee is to be paid. Either the renewal fee can be paid in lump sum or every year while renewing.
Section 53 of the Indian Patent Act, 1970
Section 53 of the Indian Patent Act (1970) talks about expiry of pending patent applications or any patents granted after 20th May 2003. In 2002, patents amendment was brought in which fixed that the term of every patent granted, after the commencement of this Amendment Act and the term of any patent which has not expired on the date of such commencement, shall be 20 years from the date of filing of the application for the patent. And any patent will cease to have effect after the expiry of 20 years and as well as after the expiry of prescribed last date of renewal fee payment and non-payment of such renewal fee. If Patent Application was filed accompanied by provisional specification and then complete specification was filed within 12 months, expiry shall be calculated from provisional filing date.
Expiry is 20 years from the International filing of patent date which is through PCT (patent cooperation treaty).
Making, using, selling or importing the patented product or using the patented process are termed as infringement of patented work. There could be three types of damages that could be given to patent owner. The categorization is-
- Equitable Remedy which involves an action to be taken against infringer and not money compensation,
- Civil action in which compensation could be granted and use of patented work could prohibited by strong action,
- Treble damages, which is basically award of triple times the damages.
There are various remedies available against patent infringement in India:
- If infringing goods are imported then the patent owner can prevent them from being imported by filing a complaint to the collector of customs.
- When for a civil remedy, patent owner approaches the court, the court either grants interim injunction during the pendency of the case or permanent injunction after completing the trial of the case.
- The court at various times grant interlocutory orders when there exists a prima facie case of infringement, balance of convenience is tilting in his/her favour and if injunction is not granted he/she shall suffer irreparable damage.
- The court also has the option of giving Anton Pillar orders which refers to search of defendant and his premises. Any infringing material or material assisting in infringement could be seized then.
- Costs are typically recoverable in rare cases where there has been wilful infringement along with attorney's' fees.
- Damages or account of profits (made by the defendant) could be recovered.
Patent Protection in India!
If hardware is the organ of a computer or mobile phone, software is the blood that makes it work efficiently. Any electronic data or instruction that commands our smart device to do or not to do a task is software. Everyday new software is created to simplify our lives.
Be it the alarm or a messaging application or the various apps like Facebook, Chrome, Instagram, etc. or Android system, the millennials are highly dependent on these software. Therefore, for a software developer who creates such tools for our leisure and comfort, it is crucial to protect his creation. This protection comes from patenting the product so that no one else can claim it as his own invention.
The Indian Patent law does not grant a patent to software by itself. It means that a computer programme per se cannot be patented i.e. a computer programme cannot be patent by itself. However, if the product consists of both software and hardware, a patent can be granted to the combination. If the patent is solely for a product which is based on just software, then the law explicitly denies such patent. But a patent will be granted if it proved that the product consists of both software and hardware and passes all other criteria of patentability. For example, any software combined with a new mobile phone can be patented.
An invention will not be deemed ‘not patentable’ only on the ground that it is a computer programme. The application of the patent has to be presented in such a manner that it shows that the invention is a blend of software and hardware. Microsoft has applied for hundreds of patents for its software in India. Other method used by software developers is applying for Copyright of their software.