What is a Patent?
A patent is a monopoly right which is given to the person who has invented a new product or Process which is Novel, Non-obvious and capable of industrial application. The patent is given to the Inventor by the Government for a certain period, which is 20 years from the date of filing. This right excludes other people from making, using, selling, or importing the patent without the permission of the inventor.A patent is a specific right given to the person who has invented something new. He can enjoy the right of patent till the expiry of the term of his patent. The patent right to the patentee helped to secure his invention and encouraged him for more scientific research.
The patent comes under 7 Important Intellectual Property Rights in India.
The main idea of giving the right of patent to the Inventor is to promote the research and technology in the country which helps the country to grow more and more.Who is the Patentee?
The person who invents a new article improvement in existing articles or a new process for making any old article is known as a Patentee.
History of Patent
The first patent was recognized in Ancient Greece in Sybaris. It was a grant in 1450 for the making of glass. The period for this was only 10 years.
Objects of Patent
The main objective is to encourage scientific research, new technology, and the progress of industrialization. It is given for a specific time and after the expiry of the period, the patent will pass into the public domain.
Significance of patent
Research and development (R&D) are the key factors for the growth of the County. Monopoly rights to patentees motivate him for more and more research in the field of technology development.
Types of patents
There are mainly three types of patent which is granted to the inventor by the government of the country. These different types of patents have their specific requirements and scope of protection. So let us discuss every type of patent.Utility Patents
Utility Patents are granted to the inventor for a novel and useful process, articles of manufacture, machines, compositions or any new or improvements in old inventions. This is the most used type of patent which is being used in every country. Utility patents are granted to the patentee for a certain period which is 20 years from the date of filing as per the Patents Act, 1970. To file a Utility patent, the inventor has to make the draft by filling the Form 2 which is called provisional or complete specification. The inventor has to describe the invention fully and he has to write the best method of making the product or process. It includes the working, novelty, non-obviousness and how it is useful in the industry. There are different types of patent applications.Design Patents
Design patents are another type of patent which provides legal protection to articles that are new, original, and ornamental designs for an article. The design patent provides the exclusive right to the make or that design to exclude others from making, using, selling or importing the invention which is similar or identical to the invention which has been registered as a design patent. The period for a Design patent is 10 years which can be extended for 5 years one time.Plant Patents
Plant patents are another form of Intellectual property which protects the new or distinct plant varieties. The plant patents are granted by the Government to the person or organisation who has invented or asexually reproduced a new plant variety. The main criterion to gain the plant patent is that the plant must be new and distinct from other varieties. To get a plant patent, the person has to apply for the grant of a plant patent. This application must include all the necessary details related to the new plant. The draft for this application may also contain images of the new plant.
Patentability criteria for a patent
Now the question arises what are the patentability criteria to make an invention be patented? Patentability criteria include Novelty, non-obviousness and Industrial application of such invention. It means Any new product or process which follows the characteristics of a patent i.e., Novelty, Non-Obviousness and capability of Industrial application can be patented. Also, it should not fall under sections 3 and 4 of the Patent Act 1970.Novelty
Any invention which:- Is new to everyone.
- Does not come under prior art.
- Does not Published before the date of filing.
- Does not being used in the public.
Non-obviousness
If the invention is not obvious to the person who is skilled in that field of patent is considered as a non-obvious invention. It should have technical advancement economic significance, or both.Industrial Application
Any invention which can be made or used in industry is known as capable of industrial application.Section 3 (What are not inventions)
- An invention which is frivolous and contrary to natural laws
- Contrary to public order or may harm humans or animals.
- Mere discovery of living or non-living things
- Discovery of a new form of known substance or no result enhancement
- Admixture resulting only in the aggregation of the properties of the components.
- Mere arrangement or rearrangement of known devices
- Repealed
- Method of horticulture and agricultural
- Process for the medicinal or surgical.
- Plant and animal in whole or any part thereof including seed and microorganisms.
- Mathematical or computer programmes
- Literary or dramatic work
- Method of performing the mental act of playing a game
- Presentation of information
- Topography of Integrated Circuits
- Traditional knowledge cannot be patented as per this section.
Section 4 of the Patents Act
The patent related to atomic energy cannot be granted.Who can apply to file a patent application?
The person entitled to apply for a patent:- The true or first inventor of the invention can apply to file a patent application.
- Assignee of the true or first inventor is also entitled to file a patent application.
- Legal representative of any deceased person(who invented the new product or process).
Product Patent and Process Patent
The inventor can claim his patent for the Product as well as for the process of making a product. Any product or process that is new, non-obvious and can be made or used in the industry can be patented. For example, a mobile phone can have more than 100 patents inside and the process of making the battery of the mobile phone can be claimed as a process patent. The term to grant patent rights for both product patent and process patent is 20 years from the date of filing or the date of priority.Provisional and Complete Specification
These are the forms of the specifications that have to be submitted to the controller with the application. Where the application is submitted with the provisional specification to the controller, the complete specification must be submitted within 12 months. If the person fails to file, the application will be deemed to be rejected.
What is the anticipation?
Anticipation means if any person knows about or used the invention which is going to be Patent, that person can apply for the cancellation of the application filed by the person who claims his invention. At the time of the First Examination Report (FER), the controller can also mention the anticipation.
Term of Patent
Section 53 of The Patents Act 1970 has provided the term of the patent which is 20 years from the date of filing or the priority date whichever is earlier.Rights and obligations of the patentee
Rights of patentee
After the grant of the patent, certain rights and obligations are given to patentees in India. The Patent Act gives certain rights to the patentee so that he can gain some profit from his patent.
The patentee can enjoy the following rights:Exclusive right
Section 48 of the Patent Act 1970 provides the exclusive right to patent. As we know the patent can be a product or process. Section 48 provides exclusive rights by preventing the patent in both situations whether it’s a product or process.
- If the subject matter of the patent made by the patentee is a product, The exclusive right to patent prevents third parties from making, offering for sale, selling, importing, or using the product made by the patentee without his consent.
- If the patentee has taken the patent for a process, the exclusive right to the patentee prevents third parties from using that process for making any product, using, selling or importing without the consent of the patentee.
In simple words, the third party can only use a product or process patented by the patent only if the patentee gives his consent to third parties to manufacture, import and sell that product or process.
Right to exploit
This is one of the main rights of patentees in which the patentee has the right to possess, use, and dispose of the patent made by him.
Any agent authorised by the patentee can also enjoy this right on behalf of the patentee. Under The Patent Act, it is mentioned that the patentee can give the power of attorney to his agent for the use of a product or process patented by his master.Right of assignment
It is the right of the patentee that he can assign and give the licence to a third party to use, manufacture, sell or export his product or process. But for the assignment of his right to a third party, the patentee has to inform the registrar of the patent. The licence given by the patentee to third parties will work like a written contract between them.
Right to enjoy the benefit.
It is the right of the patentee that he can benefit from his invention. In a case where he has assigned a third party for the manufacturing use and selling of his invention, he can benefit from that assignment.
Right to Mark
The patent holder can affix his name or company name on the product invented by him. He has the right to sell his product by affixing his company name on the product.
Right against infringement
It is the right of a patentee that he can file litigation in a court of law if any person has increased his rights given under the Patent Act by using his product or process.
Right to renounce patent rights
The patentee can renounce his patent rights by giving his written declaration to the controller of the patent. After the written declaration of the patentee, the controller will advertise his surrender.
After the advertisement, any other party interested in getting ownership can approach the controller to take ownership of that patent. If the controller finds that the approach made by any other party is genuine, he will grant the ownership to that party.
Rights of co-owner of the patent
In a situation where there are two or more persons in the patent, each person will be known as the patentee and every person shall have every right given under the act unless an agreement to the contrary is made between all the partners.
- If there is any agreement made between the patent holders, the share will be divided according to that agreement.
- If there is no agreement made between the patent holders, every patent holder can enjoy the rights given under the Patent Act without infringing the rights of another patent holder.
- If any patent holder sells his right to another person, that person will take the position of the patent holder as a partner.
- The agent of the patent holder can also enjoy the right of the patentee on behalf of his master.
Obligation of patentee
The Patent Act also give some application to the patentee which should be fulfilled by the patentee.Duty to disclose
The patentee must disclose all the necessary facts needed by the controller. The duty to disclose all the necessary Facts starts from the initial state when a person applies for a patent. It is the duty of the patentee that he should inform the controller regarding a similar invention filed by him or another person.
Request for examination
It is the duty of the patentee that he has to request the controller for the examination of a product or process invented by the patentee.
Duty to answer all the objections
Many times it happens that many other parties raise objections to the invention made by a patent holder. It is the duty of the patentee that he has to answer all the objections imposed on him.
Clear all the objections.
The patentee has to clear all the objections opposed to his invention. If he fails to clear all the objections, the patent controller may take his patent rights and give them to the party who is objecting.
Statutory fees
Patents need some fees during the registration process of the patent. If the patent holder fails to pay all the state rotary fees, we will not be liable to grant the patent.