IP TRACTUS

Advocates, Patents, Design & Trademark Attorneys

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Patents

PATENT

Patent is the exclusive right of making, using, offering for sale, selling or importing the patented product or process for limited period of time.

OBJECT OF PATENT PROTECTION

  • Lawfully rewarding the inventor or owner of the invention in the form of exclusive right.
  • Encourage scientific research and development;
  • Transfer the invention into the public domain after the expiry of 20 years.

PATENTABLE INVENTION

Patent is granted to an invention if satisfies following conditions:

  • Must be new or novel ;
  • Must be non-obvious or involves one or more inventive steps;
  • Must be useful and capable of industrial application;
  • Must fall under patentable subject matter;

NON PATENTABLE SUBJECT MATTER

Following inventions are non patentable subject matter as per section 3 and 4 of the Indian Patent Act:

  • An invention which is frivolous or which claims anything obviously contrary to well established natural laws;
  • An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
  • The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature;
  • The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs  at least one new reactant;
  • A substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
  • The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a know way;
  • A method of agriculture or horticulture;
  • Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human being or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
  • Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals;
  • A mathematical or business method or a computer programe per se or algorithms;
  • A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
  • A mere scheme or rule or method of performing mental act or method of playing game;
  • A presentation of information;
  • Topography of integrated circuits;
  • An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components
  • Invention relating to atomic energy falling within sub- section(1) of section 20 of the Atomic Energy Act, 1962

 

WHO MAY APPLY FOR PATENT

Application for patent can be made by any of the following person either alone or jointly:

  • True and first inventor
  • Assignee of true and first inventor
  • Legal representatives of true and first inventor and assignee

 

TYPE OF PATENT APPLICATIONS

  • Ordinary application
  • Convention application
  • PCT International Phase
  • PCT National Phase
  • Patent of Addition
  • Divisional application

 

 DOCUMENTS NEEDED FOR PATENT APPLICATION

  • Provisional/ Complete  Specification in English or Hindi  ( in convention and PCT application only complete application)
  • Proof of right for making application( may be filed later)
  • Power of Attorney (may be filed later)
  • Priority document if any (may be filed later)

 

PRIORITY DATE

Priority date is the date on which a patent application is filed for the first time in any patent office.

 

PUBLICATION OF APPLICATION

Ordinarily a patent application will be published after the expiry of 18 months from the priority date.

 

DOES LAW PERMIT FOR EARLY PUBLICATION OF PATENT APPLICATION

Yes, a patent application can be published earlier if request is made to this effect at patent office in prescribed manner with the payment of fee.

 

ADVANTAGE OF PATENT PUBLICATION

From the date of publication of patent application, applicant shall have like privileges and rights as if patent for invention had been granted but these rights will only be enforceable after the grant of patent.

 

EXAMINATION OF APPLICATION

A request for examination must be made before the expiry of 48 months from the date of priority or date of filing of application which ever be earlier

 

IS PATENT APPLICATION EXAMINED AUTOMATICALLY

No, express request must be made for patent application to be examined either by applicant or any interested person within 48 months.

 

WHAT IS THE CONSEQUENCE IF REQUEST FOR EXAMINATION IS NOT MADE

If request for examination is not made within 48 months then patent application shall be treated as withdrawn.

 

WHAT IS NEEDED TO BE DONE AFTER EXAINATION OF PATENT APPLICATION

After the examination of patent application, FER(first examination report) is issued by patent office to applicant. Applicant is required to comply with the requirement of the FER within 12 months from the date FER issued.

 

WHAT HAPPEN IF REQUIREMENT OF FER IS NOT COMPLIED WITHIN 12 MONTHS

Patent application shall be deemed to be abandoned.

 

CAN 12 MONTHS DEADLINE BE EXTENDED

No, there is no extension time beyond 12 months.

 

VALIDITY OF PATENT IN INDIA

Validity of Patent in India is 20 years subject to payment of renewal fee.

 

WHAT HAPPEN IF RENEWAL FEE IS NOT PAID

The patent will be ceased if renewal fee is not paid within prescribed time.

 

RESTORATION OF PATENT AFTER ITS CEASATION

Patent which have been ceased, can be restored with express request at patent office within 18 from the date patent ceased to exist.

 

 TIME PERIOD FOR NATIONAL PHASE ENTRY IN INDIA

Time period for national phase entry in India is 31 months from the date of priority or international filing date, whichever is earlier.

 

TIME LIMIT FOR WITHDRAWAL OF APPLICATION

Patent application can be withdrawn at any time before 15 months from the date of filing of application or priority date, whichever is earlier. Patent application can also be withdrawn at any time before grant of patent.