Patent in India - An overview

What is Patent?

Applying for a Patent in India protects the inventor from any Patent infringement under the Patents Act, 1970. Patent is a right granted to an individual or enterprise by the government over his invention/creation. Additionally, It gives an inventor of a particular thing, the exclusive right to make, use and sell his or her creation for a specified period of time. Patent filing or patent registration is the first step an inventor takes to protect his/her invention from being misused. The basic idea of this system is to encourage the inventors to safeguard their own creations.

Benefits of getting a patent in India

• It prevents theft of your invention
• You also have the freedom of exclusivity
• It is easy to build a merchandise and commercialise the invention
• It creates higher market share since your idea becomes a brand
• The monetary value of you invention increases and you can gain higher profit margins

Requirements of a Patent in India

• Novelty
  • An invention will be patented only if the work is unique and novel. It should not already exist, nor published or described in any patent application before. It is of prime importance that the work in question should be different from already existing creations in any way and has not been made by anyone before.
• Non-obviousness
  • Additionally, the work should not be obvious to the society. The work should not be easily predictable by a person who is skilled in the same field of work. An idea to combine two things is not something on which a patent can be granted.
• Industrial Applicability
  • In order to be granted a patent, the work submitted must have a practical utility in industries. The invention should also not be vague or exist in abstract. It should be something having utility and practicability for industrial purpose.

Types of Patent

• Utility Patent
  • Utility Patent covers all new inventions, significant modification and improved process or product, having some utility. The patent protects the rights of the inventor over his invention by preventing any third party to use, sell, or make the invention in question, without proper authorization.
• Design Patent
  • Design patent covers all ornamental design of a useful product. The Design of a printer, shape of spoons, etc. are some examples that can be granted design patent.
• Plant Patent
  • Plant patent covers the patent granted on plants. A Plant patent is granted when new plants are produced through asexual modes of reproduction like cutting, vegetative propagation and other such processes. However, plant patents are not granted in India.

What types of inventions are not patentable?

• An invention contrary to the natural law
• Mere discovery
• Discovery of a new property of a known substance
• Arrangement or re-arrangement of known substances
• Agriculture and horticulture
• Medical processes
• Plants and animals
• Mathematical methods and computer programs
• Literary and artistic work
• Topography and traditional knowledge
• Invention out of atomic energy

Types of Patent Application in India

• Provisional Application
  • Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a ―priority date of the invention. Further, the inventor gets 12 months’ time to fully develop the invention and ascertain its market potential and to file the complete specification.
• Ordinary Application
  • An application for patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. This type of application is an ordinary application.
• Convention Application
  • An application claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries is known as a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.
• PCT International Application
  • An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty (PCT) is an international application which can be filed in more than 150 countries by a single application.
• PCT National Phase Application
  • When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.
• Patent of Addition
  • When an invention is a slight modification of the earlier invention for which he has already applied for or has obtained patent, the applicant can go for patent of addition if the modification in the invention is new. One of the benefits of filing patent of addition is that there no need to pay separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.
• Divisional Application
  • When an application claims more than one invention, the applicant on his own or to meet the official objection on the ground of plurality or distinct invention may divide the application and file two or more applications, as the case may be for each of the inventions. The priority date for all the divisional applications will be same as that of the main (the Parent) Application (Ante-dating).

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