Patents

1. Introduction to Patents
2. Protection & Rights offered by Patent
3. Conditions for Registration
4. Procedure for Registration
5. Effect of Patents

PATENTS

Issued upon application, by a government office (the Patent office), a patent is a document which describes an invention and create a legal situation in which the invention can only be exploited with the authorization of the owner of the patent i.e. patent protect an invention and grants to the owner the exclusive rights to use his/her invention for a limited period of time.

Patent rights are created by statue and are governed by Patents Act 1970 (India), which was amended by (Patents Amendment Act), 1999.

Patent is the strongest form of Intellectual property, giving rise to monopoly in the working of an invention either in relation to a product or a process, Thus, a patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. By their nature, patents usually protect ideas, as expressed in the description and claims, but there are several controls on the monopoly status they confer upon proprietors.
The considerations which are said to constitute the quid pro quo for the grant of the patent monopoly are:

1. The working of the invention with in the country which consequently results in the establishment of new industry in the country or an improvement or invention of an existing industry which would profitably employ the labour and capital of the country and thus increase the national wealth.

2. Disclosure to the public of the invention and the manner of its working so that on the expiry of the life of the patent the public are enabled to work on the invention themselves and in competition with each other.

PROTECTION & RIGHTS OFFERED BY PATENT

A patent grants the patentee the exclusive right to prevent any third party to from making, using, offering for sale, selling or importing of the patented product in India, except without his/her consent.

Indian Patents Act 1970 provides

1) A Patent which is granted before the commencement of this Act, grants exclusive rights on the patentee, his agent or licensee to make use, sell, exercise or distribute the invention in India.
2) A Patent which is granted after the commencement of this Act, where the patent is for an article or substance or for a method or process of manufacturing an article or substance confers the exclusive right on Patentee, his agent, licensee to make use, exercise, sell or distribute the same.

The rights which are granted through Patent are required to be maintained by patentee through payment of renewal fees prescribed from time to time. Non payment of prescribed fees results in automatic lapse of the patent.

Duration or period

Term of patent has to be at least 20 years from the filing date of patent application as now provided by the International Treaty, after that it becomes public property when anybody can use the patented invention.

Commercial exploitation

In case of patent the patentee may himself exploit the patent or assign his right or license them to industrialists for a lump sump payment or on a royalty basis.

There is no single international patent. A patent issued by one country provides no right in other countries.

Rights and remedies against infringement

In case of infringement of patent the patentee may obtain an injunction restraining the infringer from using the patent and either damage on account of profits.

CONDITITON FOR REGISTRATION

A patent is granted subject to the following conditions:

a) That the machine, article, or process in respect of which the patent is granted may be imported or made by or on behalf of Government for its own use.

b) That the machine, article, or process in respect of which the patent is granted may be used by any person for the purpose of experiment or research

c) That the medicine or drug that is covered by the patent may be imported by the Government for its own use or for distribution in a dispensary having regard to the public service of such dispensary or hospital.

The names and addresses of the grantees of the patent shall be entered in the register of the patents which is kept in the patent office.

Patent when to be granted

The basic principle of Patent law is that a patent is granted only for an invention which must be new and useful. It is essential for the validity of the patent that it must be inventor’s own discovery as opposed to mere verification of what was already known before the date of patent.

PROCEDURE FOR REGISTRATION

General Procedure

In India a patent application is filed either in Hindi or English at patent office based on residence or principle place of business which should be accompanied with complete specification. Only one application is filed for one invention.

If the application for the patent is prosecuting for a patent in any country other than India in respect of similar application, such application for patent should be filed along with the statement declaring the particulars of the invention and undertaking.

Application for patent shall not be open to the public for a period of 18 months from the date of filing or date of priority which ever is earlier.

Every application shall be published on the expiry of the said period.
On publication, the patent office makes the specifications and drawing available to the public and biological material is made available by the depository institution.

Person entitled to apply for Patent

An application for patent for an invention can be made by any of the following persons:

a) Any person claiming to be the true and first inventor of the invention.

b) Any person being the assignee claiming to be the true and first inventor in respect of the right to make such application.

c) By the legal representative of the deceased person who immediately before his death was entitled to make such application.

EFFECT OF PATENTS

Granting of patent monopoly in consideration of the disclosure of the invention enables competitors in the field to manufacturers’ new products or improved products or effects improvements in the process of manufacturing.Patent when to be granted

The basic principle of Patent law is that a patent is granted only for an invention which must be new and useful. It is essential for the validity of the patent that it must be inventor’s own discovery as opposed to mere verification of what was already known before the date of patent.

PROCEDURE FOR REGISTRATION

General Procedure

In India a patent application is filed either in Hindi or English at patent office based on residence or principle place of business which should be accompanied with complete specification. Only one application is filed for one invention.

If the application for the patent is prosecuting for a patent in any country other than India in respect of similar application, such application for patent should be filed along with the statement declaring the particulars of the invention and undertaking.

Application for patent shall not be open to the public for a period of 18 months from the date of filing or date of priority which ever is earlier.

Every application shall be published on the expiry of the said period.
On publication, the patent office makes the specifications and drawing available to the public and biological material is made available by the depository institution.

Person entitled to apply for Patent

An application for patent for an invention can be made by any of the following persons:

a) Any person claiming to be the true and first inventor of the invention.

b) Any person being the assignee claiming to be the true and first inventor in respect of the right to make such application.

c) By the legal representative of the deceased person who immediately before his death was entitled to make such application.

EFFECT OF PATENTS

Granting of patent monopoly in consideration of the disclosure of the invention enables competitors in the field to manufacturers’ new products or improved products or effects improvements in the process of manufacturing.