Purpose of Patent Law

Table of Contents:

1. What is a Patent?

2. What is the difference between a patent, copyright, and trademark?

3. Why is patent law important?

4. What is the purpose of patent law?

5. What is the Indian Patent Act 1970?

6. How long is a patent valid in India?

7. What are the requirements for obtaining a patent?

8. What is the procedure for filing of Patent?

What is a Patent?

A Patent in simple terms is an invention and therefore requires innovation. It is an exclusive monopoly granted to the inventor for allowing the use of the invention in the open market. A patent can be granted against product, process of doing something or a technical solution to a problem. When an invention is created the inventor is required to apply for a patent to the patent office as it has various benefits. In order to be patented, an invention must be new i.e. it cannot be an extension of something that already exists. It can neither be obvious to people skilled in the given technical field nor can it be another shuffling of the steps involved in procedure, therefore, it has to involve an inventive step. The most important part is the practicability of the invention, i.e. if it is in theory then it must have the potential to be put to practical use as well.

Although there is no bar on innovation the following inventions are not patented according to law:

• Invention which is contrary to natural laws

• Invention which is contrary to law, morality or public health

• Inventions which are mere discovery or a scientific principle or formulating an abstract theory

• Mere discovery of a new property or new use of an existing substance 

• Substance obtained by a mere admixture resulting only in the aggregation of the properties of the components

• Arrangement, re-arrangement or duplication of known devices functioning independently

• A method or process of testing applicable during the process of manufacture 

• A method of agriculture or horticulture

• Any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals or plants to render them free of disease or to increase their economic value or that of their products

All the above-mentioned innovations cannot be patented in India. 

Top Read: How to File a Patent in India

What is the difference between a patent, copyright, and trademark?

Patents are often confused with copyrights or trademarks but all three are very different from each other:

• Patents are pure innovations derived out of ideas. They are for the advancement of technology.

• Copyrights are original works of individuals in the form of artistic, literary, musical and dramatic work. to protect original works of the authors. 

• Trademark is a symbol or mark or picture which recognises or connotes a specific brand. 

Therefore, all these three are very different as one deals with innovation, the other deals with entertainment and the third deals with the recognition of the brand. 

Why is patent law important?

Patent law is very important as it promotes innovation of technology. It encourages research and development by protecting the rights of the innovators. Patent law regularises and helps the inventor to register the patent. The main motive behind the implementation of patent law was to ensure that innovation is free and people are encouraged to invent more and more as their products are protected. Therefore, patent law is important as it protects the rights of the inventors. The importance of patent is recognised globally.  

What is the purpose of patent law?

The main motive behind patent was to encourage scientific research, new technology and industrial progress. Patent law grants a monopoly to the inventor to use their patented product and allow the use of the same to someone with prior permission against certain consideration. 

Patent confers the right to manufacture, use, offer for sale, sell or import the invention for the prescribed period to the inventor. In short, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. Patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner’s consent. It protects against infringement of the patent i.e. if someone tries to replicate the invention or invents against an existing patent the original inventor can enforce their right against such duplicate product. 

What is the Indian Patent Act 1970?

During the British reign in India, the Act VI of 1856 granted protection of inventions based to inventors of new manufacturers for a period of 14 years. It underwent many modifications thereafter and in 1911 Indian Patents & Designs Act was enacted. Then again modifications took place and the present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005(1), wherein product patent was allowed against all fields of technology including food, drugs, chemicals and microorganisms. The new law allows compulsory grant of patent except in prohibited cases as done earlier. The new amendment of 2005 also included pre-grant and post-grant opposition. A patent application in India can be filed either individually or jointly, by true and first inventor of the assignee.

Further Read: How to check the Patent status in India

How long is a patent valid in India?

Initially patent was granted for a shorter duration on medicine or drug substances. However the amending act of 2005 unified the patent validity for 20 years for all substances. The term of patent begins from the date of application of patent (the same formula is used in Trade Mark). After the expiry of 20 years of exclusive rights, it is open to the public for utilisation. After 20 years of monopoly the patent is open for public use and the inventor no longer holds monopoly over the rights of manufacture, distribution or the same kind. A patent is valid for 20 years but a patentee has to renew a patent every year by paying the renewal fee, which can be paid in lump sum as well.

What are the requirements for obtaining a patent?

The application for patent is required to be made at Indian Patent Office by the inventor. There is no bar on the identity of the inventor. The application can be made by any person i.e. Indian or a Foreigner, individual, company or the Government itself. This ensures that innovation is promoted in all spheres and allows technology to grow in itself. The patent application is required to primarily disclose the best method of performing the invention which is known to the applicant for which he is claiming protection. The application also needs to specify the scope of the invention i.e. nature of the project, its target market, the consequences and objectives, the result of invention and purpose of the same. Each invention is required to be separately applied for, i.e., one application for one invention formula. Multiple inventions cannot be granted patent over a single application. Scope of a patent is very important as it is a crucial factor determining infringement with other products. Thus, the infringement has to be determined with regard to what has been claimed as invention under the Patent Act by applying the principles or standards of construction.

What is the procedure for filing of Patent?

The procedure for filing a patent involves various steps. There are certain deadlines which are to be met and adhered to for proper filing of patent. In case professional help is sought, it is suggested that a non-disclosure agreement be signed to protect your intellectual property.

• After checking all the requirements, when you decide to go ahead with the idea the patentability should be checked. It is an optional step in the grant as it requires the inventor to do research on their own. Checking up patentability is recommended as it determines the chances of grant of patent. In the cases where the inventor is focusing on an international market, it is highly recommended to check patentability.

• Filing a patent application is the first step towards securing a patent against the invention. It requires submission of a set of forms which can be submitted online on the website of Indian Patents Office or submitted offline at the office. Patent application is filed in Form no. 1 accompanied by Form No. 2 which is a patent specification form. Under patent specification form the invention is written in a techno-legal language which can be with or without claims. Specifications filed without claim is provisional as there are certain cases where the work on invention is still under process. Specifications filed with claim are complete and they include the legal part where legal protection is sought by the inventor.

Note: There are other forms as well which are required to be filed along with the application. Form 3 furnishes information relating to the patent application filed in other countries with respect to current invention. Form 5 furnishes declaration with respect to inventorship.

• A complete specification patent application is to be filed mandatorily within 12 months of the provisional application. There are 6 different kinds of filing filed in the Indian Patent Office(2). These are:

1. Ordinary Application

2. PCT National Phase Application

3. PCT International Application

4. Convention Application

5. Divisional Application

6. Patent of Additional Application

• Once the Application has been filed, then after the expiry of 18 months from the date of filing or date of priority whichever is earlier, the application is published in an official journal and is open to the public. This is a chance given to the public to raise an objection if any. Form 9 is filed to generate patent specification publication within 1 month from filing this form, if not filed then it is published after 18 months. (priority date refers to the date of filing of the first patent application for the current subject matter)

• Thereafter, the patent application is examined. For the examination to take place a request for examination has to be filed. The request for application has to be filed within 48 months of the application filing date or the date of priority. The examiner examines the patent application and issues an examination report. The examination report contains a series of objections raised by an examiner. The response for the objection is to be answered within 12 months. The examiner can call the inventor for hearing the answers. This procedure is called patent prosecution.

• After all the objections to the examination report is compiled and the examiner is satisfied with the reply of the inventor, the application is forwarded for grant of patent. In case the examiner is not satisfied they can reject the application outright.

The filing of patent takes about 4-6 years therefore it is suggested that all the deadlines be adhered to and research be done beforehand in order to ensure that registration takes place on time. Once granted the patent is out in the public domain for use, subject to restrictions imposed by the inventor for 20 years and thereafter open to public use.

External Links:

[1] History of Indian Patent System: A brief about all the changes made in the Patent laws in India since 1856

[2] Indian Patent Office: Filing application for Patent