Understanding Patent Law in India- A comprehensive guide

INTRODUCTION

A patent law is an exclusive legal right granted by the government, to the patent holder for some time in exchange for making the information or invention public. This right prevents others from using, selling, or duplicating the patent without permission.

This exclusive legal right to patent encourages innovation, protects intellectual property, and boosts economic growth among other benefits.

The primary objective of this guide is to provide a detailed and structured analysis and understanding of patent law in India.

TYPES OF A PATENT

There are mainly 4 types of patents mainly found in the Indian Patents Act. These are:

• UTILITY PATENT- These patents protect the new and practical features of the inventions such as the machinery, composition of materials, or the method, and are known as “patents for an invention”. The India’s Patent Act of 1970 grants exclusive rights for 20 years from the filing date.

• DESIGN PATENT- These patent rights are granted to protect the design features of the product. The focus of these patents is mainly on the artistic and aesthetic features of the product. These design patents are granted under the Designs Act, of 2000 for a period of 15 years.

• PLANT PATENT- These patents are part of the intellectual property which specifically protects the unique features and characteristics of the plant. This prevents others from copying, or reselling without permission. Under this, plants specifically reproduced to create a new variety are granted protection under this. Only granted if the reproduced plant type meets specific criteria:

1. Novelty
2. Distinctness
3. Uniformity
4. Stability

• PROVISIONAL PATENT -A provisional patent application is an initial filing procedure that provides individuals with a 12-month window to secure a filing date within the window. This allows them to develop their invention,

This helps in avoiding the formalities associated with a regular patent application. And gives flexibility for development.

PATENT LAW IN INDIA – INDIAN PATENTS ACT, 1970

Indian Patents Act, governs the legal framework for patents in India. It defines patents, outlines the process for granting patents, and sets out the rights and responsibilities.

Features:

• It defines that the patentable inventions must be novel, involve an inventive step, and be capable of industrial application. It further defines that frivolous inventions or those contrary to natural law as well as methods of agriculture and horticulture cannot be patented.
• India has types of patents named utility patents, design patents, plant patents, and provisional patents.
• The standard term for the patent filing is 20 years from the filing date irrespective of whether it’s filed with a provisional application or complete specification, in some cases, it is 10, or 15 years
• Under section 84 government of India allows some others to produce a patented product without consent if it is related to the public interest. These mainly include medicine and treatments.
• The patent holder has the exclusive right to make, use, and sell the product. Its infringement can result in legal action and compensation.
• The act was amended in 1999, 2002, and 2005 to align with the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), the 2005 amendment allowed for the production of patents in the pharma sector.

PATENTABILITY CRITERIA IN INDIA:

An invention is patentable subject matter if it meets the following criteria –

i) It should be novel – The invention should be new and not disclosed to the world. The product should not have been used, published, or known anywhere in the world.

ii) It should have an inventive step – The patentable object must involve an inventive step, so that it is obvious that the person is skilled in the relevant field. It should show a technical advancement or offer economic significance and should not be related to the existing knowledge.

iii) It should be capable of Industrial application – The invention should be capable of being made to use or be used in some kind of industry. Should have practical utility and should not be purely theoretical

iv) It should not attract the provisions of sections 3 and 4 of the Patents Act 1970.

Sections 3 and 4 of the Patents Act, of 1970 include the categories which are excluded from being patented in India. These include:

• Frivolous inventions or those contrary to natural laws or contrary to public order or morality.
• Mere discovery of a scientific principle or a new form of a known substance without enhanced efficacy
• Mere arrangement or duplication of known devices or a mere admixture of known substances

HOW TO FILE A PATENT APPLICATION IN INDIA?

Filing a patent application in India involves several steps. This process is governed by the Indian Patents Acts, 1970 and is managed by the Office of the Controller Generals of Patents, Designs, and Trademarks (CGPDTM)

STEPS:

1. DETERMINE PATENTABILITY

Before filing a patent application, we need to ensure that the invention meets the patentability criteria and does not fall under the non-patentable inventions as per Sections 3 & 4 of the Patents Act.

PATENTABILITY CRITERIA:

1. Novelty
2. Inventive Step
3. Industrial Applicability

It is advisable to perform a prior search to check if similar inventions exist from the following tools

• Indian Patent Advanced Search System (InPASS)
• WIPO Patentscope or Google Patents for international searches.

2. DRAFT THE PATENT APPLICATION

Either of the following two can be filed while drafting a patent application:

• Provisional Specifications can be filed and used if the invention is not fully developed. This secures an early filing date and a complete specification is filed within 12 months
• Complete Specifications can be filed directly if the invention is complete. This tells the detailed description of the invention, claims, drawings, and abstract.

Important Sections of the Application:

• Title of the invention
• Field of the invention
• Background and prior art
• Detailed description with drawings (if applicable)
• Claims: Define the scope of protection
• Abstract: A summary of the invention

4. FILING THE PATENT APPLICATION

You can apply online via the IP India Portal or physically at the appropriate Patent Office (Delhi, Mumbai, Kolkata, Chennai) based on your jurisdiction.

Required Forms:

1. Form 1: Application for Grant of Patent
2. Form 2: Provisional or Complete Specification
3. Form 3: Statement and Undertaking (regarding foreign applications, if any)
4. Form 5: Declaration of Inventorship
5. Form 26: Authorization of Patent Agent (if applicable)
6. Form 9: Request for Early Publication (optional)
7. Form 18: Request for Examination (mandatory)

5. PUBLICATION OF THE PATENT APPLICATION

The application is automatically published after 18 months from the filing date. An early publication request can be sent using Form 9 which speeds up the process and publishes within 1 month

6.  REQUEST FOR EXAMINATION AND OBJECTIONS

Form 18 can be filed within 48 from the filing date to request an examination. The examiner reviews the application for compliance with patentability criteria and issues a  First Examination Report (FER) with observations or objections. The applicant must respond to these objections within 6 months (extendable by 3 months).

7. GRANT OF PATENT

If the examiner is satisfied, the patent is granted and published in the Patent Journal. The patent is valid for 20 years from the filing date, subject to annual renewal fees.

RIGHTS AND RESPONSIBILITIES OF A PATENT HOLDER

RIGHTS

1. The patent holder has the exclusive right to use, make, distribute, or sell their innovation in exchange for some benefit
2. The patent holder can license his patent in exchange for benefits and royalties.
3. The patent holder can take legal action and sue against anyone infringing his right over the patent. They can use the remedies of injunctions, damage, and accounts of profits. The holder can also voluntarily surrender his patent.

RESPONSIBILITIES

1. Patents are valid for 20 years and The patent holder must pay the annual renewal fees to keep the patent active
2. The holder must submit Form 27 (Statement of Working) annually to the Indian Patent Office to ensure that the patented invention is commercially exploited.
3. The patent holder must fully disclose the invention so that others can understand  and The patent holder must ensure that the patent rights do not create monopolies or hinder the competition. The government can revoke the patent if the patent is not made reasonably accessible to the public

CONCLUSION