PATENT REGISTRATION

What is Patent?

Patent is a legal monopoly, which is granted for a limited time by a country to the owner of an invention. Merely to have a patent does not give the owner the rights to use or exploit the patented invention. That right may still be affected by other laws such as health and safety regulation or the food and drugs regulation or even by other patents. The patent, in the eyes of the law, is a property right and it can be given away, inherited, sold, licensed and can even be abandoned. As it is conferred by the government, the government, in certain cases even after grant or even if it has been, in the meantime, sold or licensed, can revoke it.

  1. A Patent gives an inventor the right for a limited period to stop others from making, using, selling or importing an invention without the permission of the inventor. That is why patent is called a “negative right”
  2. Patents are generally concerned with functional and technical aspects of products and processes and must fulfill specific conditions to be granted.
  3. Most patents are for incremental improvements in known technology – evolution rather than revolution. The technology does not have to be complex.
  4. Patent rights are territorial; an Indian patent does not give rights outside of India.
  5. Patent rights last for up to 20 years in India and in most countries outside India.
  6. Depending on where you wish your patent to be in effect, you must apply to the appropriate body. In India, this is The Indian Patent Office. There are various Patent Offices around the world. Alternatively, a Patent Agent can apply on your behalf.

What rights does a Patent Confer?

The idea behind a Patent is exclusivity of use of the invention within a particular Territory. Thus, the Owner of a Patent has the exclusive right to stop others from making, selling, offering for sale, importing or using the patented invention in any other way. This however applies only for the term of the patent within the country where the Patent has been obtained.

Who can apply for a Patent?

The Inventor(s), Assignee(s), Legal Representative(s) of deceased Inventor or Assignee may make the application, either solely or jointly.

When to file a Patent Application?

The idea behind a Patent is exclusivity of use of the invention within a particular Territory. Thus, the Owner of a Patent has the exclusive right to stop others from making, selling, offering for sale, importing or using the patented invention in any other way. This however applies only for the term of the patent within the country where the Patent has been obtained.

Who can apply for a Patent?

The Inventor(s), Assignee(s), Legal Representative(s) of deceased Inventor or Assignee may make the application, either solely or jointly.

When to file a Patent Application?

In India, the Patent system follows the First-to-File principle. This means the right to obtain a Patent lies with the first person to file the application. It is advisable therefore to:

  • File the application as early as possible
  • File before making any non-confidential disclosures

Why file a Patent? (Motivation factors)

For the Individual (Inventors)

  • Enjoy monopoly of the technology for 20 years
  • Makes any invention/technology saleable
  • Facilitates the creation of distribution and licensing agreements
  • Provides inventors a basis for further invention or improvisation
  • Establishes the Patent Owner and inventor as the market leader and attracts customers
  • Informs the marketplace of an individual’s serious commercial intent For the Company(s)
  • Licensing or sale avenues open up, creating new revenue streams
  • Consolidates/strengthens market position
  • Increase in negotiating power through cross licenses or Joint Venture agreements
  • Fuels a company culture of innovation, brand presence and design
  • Attracts new capital for product development
  • Creates and enhances company image to potential investors, customers, manufacturers and distributors
  • Keeps the talent bank secure, thus encouraging more inventions in future
  • Makes it easier to operate in overseas markets and to sign up distributors

Criteria for an Invention to be Patentable

An invention means a new product or a process involving an inventive step and capable of having industrial application. Novelty: The invention has to be new and cannot be part of the “prior state of art”. This prior art refers to everything that has been published, presented or disclosed to the public, as on the date of filing for the Patent. Inventive Step: The invention will be judged by a person skilled in the relevant area. It should not be an obvious extension of the state-of-the-art. It should involve a significant technical advance as compared to the existing knowledge or should have a noticeable economic impact or both. In short, the invention should be non-obvious to a person skilled in the art. An invention cannot be considered to have an inventive step if a non-inventive mind would have thought of the alleged invention by combining the teachings of different documents that are available to the public. Industrial Applicability: An invention must be capable of being produced or used in some kind of industry. It has to take the form of an apparatus or device, a product such as some new material or an industrial process. An invention is certified for applicability, if it:

  • Can be made
  • Can be used in at least one field of activity
  • Can be reproduced with the same characteristics as many times as necessary

What is not Patentable?

Patents will not be granted for the following types of inventions.

  • Frivolous or obvious inventions
  • Inventions which are contrary to law or morality or injurious to human, animal or plant life and health or to the environment
  • Mere discovery of the scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature
  • Mere discovery of any new property or mere new use for known substance or the mere use of a known process, machine or apparatus- unless it results in new products or employs one new reactant
  • Producing a new substance by mere admixtures of substances
  • Mere arrangement / rearrangement or duplication of known devices functioning independently
  • Method of agriculture and horticulture
  • Any process for the medicinal or surgical, curative prophylactic, diagnostic, therapeutic or other treatment of human beings, animals to render them free of disease or to increase their or their products’ economic value
  • The biological processes for production or propagation of plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species
  • A mathematical or business method, algorithm or software per se • Aesthetic creations including cinematography and television production
  • Mental methods or teaching or games and sports techniques
  • Presentation of information
  • Topography of Integrated Circuits
  • Invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components
  • Inventions relating to Atomic Energy

How can the Patentee benefit from the Patent?

  • Patents, like any other property, may be assigned or licensed or even mortgaged
  • Self-Profit – A Patent recognizes the right of the patentee and gives him exclusivity of use, allowing the patentee to exploit the Patent himself, manufacture the product and distribute it through his own organization. Direct use of the Patent is the easiest and most uncomplicated method of use
  • Licensing – through licensing, the patent owner allows use of the Patent, while retaining the ownership rights o Exclusive license – except for the licensee excludes all others even the licensor from manufacturing, selling, importing or using the licensed product o Sole license – excludes all others except the licensee and the licensor from manufacturing, selling, importing or using the licensed product o Simple license (or) Non – exclusive license – does not preclude the licensor from granting more than one license at the same time in the same territory
  • Transfer / Assignment – Thanks to the nature of a Patent, it can like any other property, be bought or sold (patent purchase). By transferring, as opposed to licensing, the patentee transfers his Patent rights to another individual or entity, who then becomes the Patent Owner.