What is a patent ?

  A Patent is a grant from the Government which confers on the grantee for a limited period of time the exclusive privilege of making, selling and using the invention for which a patent has been granted and also of authorizing others to do so. The grant of Patents for inventions in India is governed by the Patents Act, 1970 and the Patents Rules 1972.

A patent granted under the Act confers upon the patentee where the patent is for an article or a substance, the exclusive right by himself, his agents or licensees to make, use, exercise, sell or distribute such articles or substance in India and where the patent is for a method or process of manufacturing an article or substance, the exclusive right by himself, his agents or licenses to use or exercise the method or process in India. The patents granted under the Act are operative in the whole of India. 

Varieties of Patents  

Three kinds of Patents are granted under the provisions of the Act, namely: 

i) An ordinary Patent 

ii) A patent of addition for improvement in or modification of an invention for which invention a patent has already been applied for or granted, A patent of addition remains in force only as long as the patent for the original invention remains in force and no renewal fees are payable in respect thereof. 

iii) A Patent will be granted in respect of a convention application filed under section 135 of the Act ,is based on an application made in an convention country. The convention application has to be made within one year from the date of the first application made in a convention country in respect of that invention.

  Who may apply for a Patent  ? 

a) An application for an ordinary Patent for an invention may be made by any person, whether a Citizen of India, or not, claiming to be the true and first inventor of the invention or his assignee. A company or a firm cannot be named as the ‘true and first inventor’. The term ‘person’ includes the Government. 

b) An application for a Patent of Addition may be made only by the applicant for the original Patent to which it is an addition, if the application for the main patent is pending; or by the patentee of such main patent, if it has been granted. 

c) A convention application may be made by any person who has made an application for a patent in respect of that invention in a convention country or by his assignee or his legal representative. 

 Special provisions regarding persons employed in Government Service.

Subject to any special conditions of service or to any special orders applicable to the persons employed in any ;particular department, all Government Servants are at liberty to apply for a patent direct to the Patent Office. 

What may be patented ?

Any invention which satisfies the definition of the ‘invention’ given in the Act may be patented. 

(a) As defined in Section 2(1)(j) of the Act; an invention, means any new and useful:- 

i)        art, process, method or manner of manufacture;

ii)      machine, apparatus or other article;

iii)     substance produced by manufacture, and includes any new and useful improvement of any of them and an alleged invention. 

The following inventions are not patentable within the meaning of the Act.  

a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws; 

b) an invention the primary or intended use of which would be contrary to law or morality or injurious to public health; 

c) the mere discovery of a scientific principle or the formulation of an abstract theory; 

d) the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant; 

e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance; 

f) the mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way; 

g) a method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture; 

h) a method of agriculture or horticulture, 

i) any process for the medicinal, surgical, curative, prophylactic, or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products. 

Certain Inventions not patentable as provided in sec.4 of Act:- 

No patent shall be granted in respect of Invention relating to Atomic Energy falling within Sub-Section (1) of Section 20 of the Atomic Energy Act, 1962.

Inventions in respect of which only processes of manufacture are patentable.

    In respect of Inventions.

a) claiming substances intended for use or capable of being used, as food or as medicine or drug, or  

b) relating to substances prepared or produced by chemical processes (including alloys; optical glass, semi-conductors and inter-metallic compounds); 

no patent shall be granted in respect of claims for the substances themselves, but claims for the method or processes of manufacture shall be patentable. 

The term ‘medicine or drug’ includes insecticides, germicides fungicides and the like. 

Term of the Patent

Subject to the payment of prescribed renewal fee within the prescribed period, the term of every patent granted shall be as follows:- 

a) In respect of an invention claiming process or method of manufacture of a substance intended for use or capable of being used as food, or as a medicine or drug be 5 years from the date of sealing of the patent or 7 years from the date of the patent whichever period is shorter; 

b) In respect of any other invention, be 14 years from the date of the patent. 

The renewal fees specified in the First Schedule to the Rules, are payable at the expiration of the 2nd year from the date of the patent or of any succeeding year and the same must be remitted to the appropriate office of the Patent Office before the expiration of the second or the succeeding year. The prescribed period for the payment of the renewal fees in respect of Patents granted under the Act is extendable to a period not exceeding 6 months . 

Date of the Patent 

Subject to the provisions of the Act in respect of the post-dating of patent applications, every patent granted under the Act shall be dated as of the date on which the complete specification was filed. 

Government Fees

Fees as prescribed by the Rules are payable for filing an application for a patent and in respect of subsequent proceedings thereon. A proceeding in respect of which a fee is payable is of no effect unless the fee has been paid. 

General procedure for obtaining a patent

The following are the successive stages of the procedure for obtaining a Patent. 

i) Filing an application for a patent accompanied by either a provisional specification or a complete specification ; 

ii) Filling the complete specification if a provisional specification accompanied the application; 

iii) Examination of the application.

iv) Acceptance of the application and advertisement of such acceptance in the official Gazette.

v) Overcoming opposition, if any, to the grant of a Patent; (overcoming by applicant for Patent). 

vi) Sealing or grant of the Patent (to be done by HO at Calcutta) 

Filing of an application for the grant of patent.

The following documents are required for filing an application for a Patent

i) An application made in the prescribed form in triplicate, having an address for service in India only. 

ii) A provisional specification drawn up in the prescribed Form  or a complete specification drawn up in the prescribed Form along with drawings if any. 

Filing of an application for the grant of patent  convention application

In respect of a convention application, it is necessary to file a complete specification along with the application. 

iii) A statement and undertaking under Section 8 of the Act in the prescribed Forming duplicate ; 

iv) An abstract of the invention disclosed in the specification; 

v) In the case of an application made by virtue of an assignment of the right to apply for the patent, the proof of the right to make the application, if the application is not endorsed as prescribed . 

vi) A declaration as to inventor ship of the invention in the prescribed form  with complete specification . 

vii) In the case of convention application, copies of the specification or corresponding documents filed or deposited by the applicant in the Patent Office of the convention country certified by the official Chief or Head of the Patent Office of the convention country or otherwise verified to the satisfaction of the Controller; 

viii) A duly stamped power of attorney . 

Drawings 

If the invention is capable of being illustrated with the help of the drawings, such drawings should be filed in triplicate along with the specification to which they relate or at such other time as the Controller may direct. At least one copy of the drawing i.e., the ‘original’ must be suitable for reproduction and as such should be on A-4 size white or light blue tracing cloth or transparent or semi-transparent sheet or film made of plastics or fiber glass. The other copies of the drawings i.e. duplicate and triplicate, may be a blue print or the like provided it is permanent, legible and true copy of the original. 

The drawings should be with a clear margin of 1.50 cm width all round. Sufficient space should be kept in between the figures, so that they may be distinct. The figures should be drawn in an upright position in regard to the top and bottom of the sheet. The various parts of the figure should be indicated by reference letters or numerals which should be bold, distinct . The drawing should be explained in the nature of flow sheets may bear descriptive matter to show the materials used and the chemical or other reactions or treatments effected in carrying out the invention . 

Opposition to the grant of Patent.

Any person interested may give notice to the controller at the appropriate office of the Patent Office, of opposition to the grant of the patent in the prescribe manner, at any time within a period of four months from the date of advertisement of the acceptance of the Complete specification . This period may be extended by one month by making an application to the Controller. 

The Controller, on the receipt of a notice of opposition, notifies the applicant. The opponent and the applicant are required to file their statements and evidence and they are given an opportunity of being heard before the case is finally decided. 

Sealing of Patent

In the case there is no opposition or the opposition proceeding is finally decided in favour of the applicant for patent, or the application is not refused by the Controller by virtue of any power vested in him, a patent may be sealed on the application upon a request made in the prescribed manner. The request for sealing  the patent should be made not later than the expiration of a period of 6 months from the date of the advertisement of the acceptance of Complete Specification, which period may be extended by 3 months . 

Where at the expiration of the said 6 months any proceeding in relation to the application for Patent is pending before Controller or the High Court, the request for sealing may be made within a period of 2 months after the final determination of the proceeding.

Amendment of application and specification:- 

The application or specification (including drawings) may be emended by way of disclaimer, correction of explanation by making an application in the prescribed Form accompanied by the prescribed fee under Section 57 of the Act. No amendment of the complete specification will be allowed the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed in the specification as it stood before the amendment or that any claim of the specification as amended would not fall wholly  within the scope of a claim of the specification as it stood before the amendment. 

Filling application for patents outside India:-  

In case a person resident in India desires to make an application for patent outside, he should either apply for a patent at the appropriate office in India and thereafter apply for a patent outside after the expiry of six weeks from the date of filing in India, provided no secrecy orders have been imposed by the Controller under Section 35 of the Act. 

General:-

All applications for patents are kept secret up to the stage of the advertisement of their acceptance. The correspondence with the applicants for Patents is also treated as confidential. 

Note:- The above information is based on the information derived from the Patents Act,1970, Patent Rules ,1972 and the information supplied by the Patent Office .All the above information is subject to change without any notice, and further may not contain all the information .Reference shall always be made to the latest up to date official Government Bare Acts, Rules, Procedures and Guidelines of the Patent office.

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