To develop a country, patency and provisions related to it are a major contribution. India being amongst the developing countries has to compete against developed ones like USA under the forums of World Trade Organization. The method of providing patent and the rights and validity of patent laws varies from country to country. For an NRI, it is relevant to know about the patent law in India, and here we have simplified it in 10 easy steps:
Patent Law in India: Introduction
A patent provides exclusive rights and authority to a patentee (the person who wants to form a patent). Basically, a patent is made towards a project in order to prevent someone else from making unauthorized or illegal use of it by making, selling or offering to sell to derive a personal gain.
Mostly the newly formed creations or inventions are patented under the patent law, so the authenticity of the content is maintained and all the profits coming from the invention go to the rightful owner.
Exclusivity is maintained under the patent law in India through contracts which help investors in investing their assets to promising projects. This way NRIs can make their fair share of profits by being abroad and investing in Indian business. Also, content creators who are NRIs are protected by Indian laws of patency.
Procedure for filing a patent in India
The first 6 steps:
- Detailed information about the concept and invention like field of invention, working, benefits, records and other explicit elements according to the project should be documented with attestations from authorities (if any). It should also be explained through the way of pictorial representation like sketches and drawings. This step plays an important role in the processing application.
- After the formation stage, it should be checked whether the invention is patentable or not. Under the Indian Patent Act, 1970, some of the inventions do not come under the patentable subject matter. Hence, the invention should meet all the essentials as required by the Indian Patent Act, 1970. These can be that the invention must be novel, non- obvious or must have industrial applications.
- After the essentials are met, one can apply for the patency of the invention, under the patent law in India.
- It is advised to fulfill the procedure of patency within the initial stage of research and development. After the provisional application is filled and the filing date has been granted, you will have a time period of 12 months to submit all the specifications. Hence, it should be given within the mentioned time period or else the patency application will be removed.
- In other scenario, if you haven’t completed the formalities of the provisional application and are at a final stage of the project, then also a full specification application can be submitted
- After filing the complete application process, be it provisional or full specification, your forum for the patency will be published in 18 months after the filing of the first application. Also, if you need to fasten the process of application then an initial publication request can be submitted with the prescribed fee.
The Next 4 steps:
- Next step is to send a Request for Examination (RFE) to the Controller which will lead to a thorough examination by the patent examiner. The patent examiner inspects the invention and whether the eligibility criterion is met or not. Some of the aspects that the patent examiner checks are:
- Subject of Invention
- Procedure of the invention
- Industrial application
- If the patent applications receive objections, then the report should be analyzed by the patentee. This can be done through the help of a patent agent. The agent will professionally look into the matter and clear the objections. At this time, the inventors and the patent agents can submit a test response which will clear all the objection. Hence, the final criterion can be passed.
- After the test response is submitted to the Controller, he gives a pass to the patent application if he deems fit and is satisfied of the response. At this point, the inventor gains a fair chance to establish his novelty and can move ahead with the remaining procedure of his project.
- After meeting all the requirements of patent provisions, the application will be booked for the grant. The Patent Journal notifies about the final status of the grant which is published periodically.
Scope of Patent law in India
Generally, anyone who has discovered or invented an original and new substance which is useful like a machine, manufacture or composition of matter can be subjected to patency.
What can be patented?
The requirements for having a patent under the patent law in India are:
- Invention must be patentable in the sense that the foundational idea behind the project can be:
- A method or a unique structure of processing (like manufacture)
- Any moving object (like machine)
- Any object which requires no movement but fulfills a task (like a paper or any other material)
- A composition of matter (like pharmaceuticals) or a combination of different living or non-living substances (like plants)
- Invention must be novel or new. In other words, it must be in an original form. It should not reside in the knowledge of people already or in a public domain. It should be kept in mind that just within one year after the date of the publication or a sale, a patent application India should be sent. Otherwise, it will be very difficult to have patent on it even for the inventor. Also, if your invention has been disclosed to you and that same person files a patent application within one year of your disclosure, then your disclosure will stop the supplication from granting a patent.
- Invention must serve a purpose of useful nature. It should accomplish something and should produce a result. The utility is one of the main essentials of receiving a patent. This is because there is a utility test while filing an application.
- The subject matter must be original or unique and not anything which is obvious
What cannot be patented?
Before sending an application of patency, it is important to derive those inventions which cannot be patented according to Indian provisions. These can be any subject matter which questions morality, frivolous in nature, contrary to well established law, injurious to public health, a mere discovery of a scientific principle, formulation of an abstract theory, inventions relating to atomic energy, method of agriculture/ horticulture, fusion of naturally occurring substances and other substances in context with these.
Rights of Patentee under Patent Law in India
- The patentee has the exclusive right to restrict others from using, making, offering for sale, selling or trading an invention or a product which is patented in India. These same rights are available to the patentee if the invention is of a process. If these rights are violated then this is called an infringement. In this case the owner of the invention can approach the district court of the appropriate jurisdiction.
- Indian Patent Office (IPO) has the sole responsibility to maintain a secrecy about the patentee’s product. The application procedure is going through i.e., for 18 months from the date of filing the application.
- The patentee is allowed to distribute license to whoever he deems fit. In case, there is more than one inventor then the license to the third party can be granted after the consent from all the inventors.
- The patentee has the right to surrender the patent. This is permitted by the Controller who will advertise and proceed with the removal of the patent.
- In the event of theft or damage, the patentee has the right to grant him/her a duplicate patent from the Controller.
Patent in India through online mode
It is essential to obtain a Digital Signature (Class III) so that the process can be done through online mode. Especially for NRIs, this method has been a big improvement in the structure of Indian provisions that has helped them in conducting their business in India while staying abroad. With the help of following steps, one can apply for patency via online mode-
- Also, the agent names should be validates as per the Register of Patent Agents through the given link: www.ipindia.gov.in
- Visit the Comprehensive e-filing portal or click on the link mentioned below: https://ipindiaonline.gov.in/epatentfiling/goForLogin/doLogin
- Fill the appropriate details in the registration form after signing in and sign the application.
- On an average it takes less time via online mode for the patent to be granted i.e., 2 years.
FAQ’s for Patent Law in India
1. Detailed information about the concept and invention.
2. Send a Request for Examination (RFE) to the Controller.
3. If the patent applications receive objections, then the report should be analyzed by the patentee.
4. After the test response is submitted to the Controller, he gives a pass to the patent application if he deems fit.
5. After meeting all the requirements of patent provisions, the application will be booked for the grant.
The term of every copyright in India is twenty years from the date of application for the patent, whether it is filled with temporary or full details. However, in the case of applications lodged under the Partnership Agreement (PCT), the 20-year period starts from the first date.
An application for refund of a patent may be lodged within eighteen months from the date of expiry of the patent and the prescribed fee. Upon receipt of the application, the matter is reported to the official newspapers for further processing of the application.
On average it currently takes between 4 to 6 years from applying in India to obtaining a patent in India.