A patent is an intellectual property right relating to inventions and the meaning of a patent is basically to have an ‘exclusive right’. The Indian patent law is designed with a primary objective to encourage inventions by promoting their protection and utilization so as to contribute to the development of industries, which in turn contributes to the promotion of technological innovation and to the transfer and dissemination of technology. In this post, let us understand the process of application for a patent in India.
Overview
The meaning of a patent is essentially to have an exclusive right. It is an exclusive right granted by the Government of India, for a limited period, to a patentee in exchange of full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process. A patent can thus be construed to be a ‘negative right’. In simple terms, negative right is what a person or a group of persons should be left alone to do without any interference by other persons1. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the fixed period of the monopoly, passes into the public domain2. Thus, one should make the fullest possible use of the Patent system and benefits it provides. It must be noted that Patent rights are territorial in nature. In the sense, there is no such thing as an ‘international patent’. A patent obtained in one country is not enforceable in any other country.
Term of a Patent
According to Section 53 of The Patents Act, 1970 (“Act”), the term of every patent granted under this Act, shall be twenty years from the date of filing of the application for the patent.
Criteria for Patentability
As per the Act, meaning of an invention is “a new product or process involving an inventive step and capable of industrial application.” Further, the Act also defines the term ” inventive step” to be “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.” Accordingly, for an invention to be patentable in India, it should meet the following criteria:
- Novelty: The matter disclosed in the patent specification should not have been published in India or anywhere else before the date of filing the said patent specification;
- Inventive Step: The invention should be non obvious to a person skilled in the art in light of prior publication or knowledge;
- Industrial Applicability: As clear as it seems, the invention should be able to be put to use in the industry; and
- An invention should not fall under the ambit of Section 3 and Section 4 of the Act.
You may be interested | Non-Patentable Inventions: A Section 3 Perspective [Click here to read]
Essential Time Lines
Time limits for various actions while prosecuting a patent application and also for post grant procedures have been either specifically provided in the Patents Act or prescribed through the Patents Rules. These time limits are required to be followed strictly by every person concerned. Failure to adhere to the legally imposed time limits may turn out to be detrimental to the interests of the applicants, patentees or any other person interested.
| Description | Time |
| Filing a complete specification after filing provisional specification | Twelve months from the date of filling of the Provisional Specification |
| Publication of application | Ordinarily within one month from the expiry of eighteen months from the date of filing or priority or one month from the date of request for early publication, whichever is earlier |
| Request for examination | Forty eight months from the date of filing or priority, whichever is earlier |
| Time for filing a response to a First Examination Report | Six months from the date of issuance of the FER |
| Time for filing written submissions in respect of a Hearing Notice | 15 days from the date of the hearing |
You may be interested | Patent Application Procedure [Click here to read]
In a Nutshell
- The meaning of a patent is basically to have an exclusive right granted for a term of twenty years from the date of application;
- A patent is an exclusive right and creates a monopoly;
- For an invention to be patentable, it should be novel; it should be inventive; it should have industrial applicability; and it should not fall within the ambit of Sections 3 and 4 of the Act; and
- Failure in adhering to the time limits may have detrimental effects on the patent application.
References
1. Isaiah Berlin, “Two Concepts of Liberty” Four Essays On Liberty, (Oxford, England: Oxford University Press, 1969), p. 118-172.
2. Biswanath Prasad Radhey Shyam vs Hindustan Metal Industries; AIR1982SC1444.