Introduction

In India patent registration is governed by the Patents Act, 1970 (No.39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. 

As stated by WIPO, “Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of global patent. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries or under PCT, within or before expiry of twelve months from the filing date in India. Patents should be obtained in each country where the applicant requires protection of his invention”.

What is Patent Registration?

A patent is a process which protects an invention, and provides to the owner the exclusive rights to use his/her invention for a limited period of time without any hindrance.

The objective of a patent is to provide protection for inventions. It gives an award for the disclosure of the creation of something new as well as for the further development, or refinement, of existing technologies.

  • To check the patentability of the invention
  • To draft patent application
  • Publication of patent application
  • Examining of patent application
  • Grant of patent

What can be Patented in India?

An invention which is new, involves inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act.

What is the criteria for Patentability ?

  • As prescribed by Indian Patent Act, an invention is patentable subject matter if it meets the following criteria:
  • It should be novel
  • It should have inventive step or it must be non-obvious
  • It should be capable of Industrial application.
  • It should not attract the provisions of section 3 and 4 of the Patents Act 1970.

Can any invention be patented after publication or display in the public exhibition?

Generally, an invention which has been either published or publicly displayed cannot be patented as such publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organised by the Government or disclosure before any learned society or published by applicant. The detailed conditions are provided under Chapter VI of the Act (Section 29-34).

What are the Advantages of Patent?

  • It gives you the right to stop others from manufacturing, selling or importing your invention if you renew it on timely basis.
  • You can get protection for a pre-determined period.
  • Patents can be licensed for others to use it or you can sell it which is an important source of revenue for your business.

What are the Disadvantages of Patent ?

  • Your patent right stands cancelled if patent is not renewed after specific time period. 
  • Renewal of patent on mentioned time is necessary because markets may change or 
  • Technology may overtake your invention if not done on time.
  • In case of non-renewal, patent ceases to exist and is passed on to the public domain.

Patent Application Examination

A patent application is not examined automatically after its filing. The examination is done only after receipt of the request of examination in Form 18 either from the applicant or from third party or Form 18A for expedited examination (under conditions as prescribed in the Rules).

Patent filing outside India

  • Ordinarily, under the following circumstances, it is not necessary to obtain prior permission from the Patent Office to file patent application abroad:
  • Applicant is not Indian resident and invention is originated abroad about.
  • If the applicant is Indian resident and filed patent application has been in India before filing the application outside India and six weeks period is over from that date.
  • The invention does not belong to Atomic Energy or defense purpose.

Patent Renewal

  • When patent is granted for your invention it is important to renew it regularly. Renewal of patent can be done by the payment of Patent Renewal Fees during the lifetime of the patent i.e. 20 years. The fee is paid to the Indian Patent Office before the expiration of the term.
  • The features of Patent renewal as follows:
  • Product and process both get the exclusive right of patent
  • A patent is valid for a term of 20 years
  • Both pre-grant and post grant opposition of appeals
  • Provision for protection of bio-diversity and traditional knowledge
  • Publication of applications after 18 months with facility for early publication.

Inventions that cannot be patented

  • According to Patent Act in India, Chapter II, Section 3 of the Indian Patents Act states what is not considered an invention under the law and is therefore not patentable in India:
  • Inventions being frivolous or contrary to public order, morality, public health, the environment, etc.
  • Scientific discoveries
  • Mere discoveries of new forms of known substances
  • Methods of agriculture or horticulture
  • Diagnostic, therapeutic and surgical methods for the treatment of humans or animals
  • Plants and animals other than micro-organisms
  • Mathematical or business methods or computer programs per se or algorithms
  • Literary, dramatic, musical or artistic work or any other aesthetic creation
  • Schemes, rules or methods of performing mental acts or methods of playing games
  • Presentations of information
  • Topography of integrated circuits
  • Traditional knowledge
  • Inventions relating to atomic energy are not patentable either.

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