Patents

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Patents
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•  WHAT IS A PATENT-
• Patent, under the Act, is a grant from the
  Government to the inventor for a limited period
  of time, the exclusive right to make use,
  exercise and vend his invention. After the expiry
  of the duration of patent, anybody can make use
  of the invention.  

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• WHAT IS AN INVENTION
• Invention means any new and useful
• art, process, method or manner of manufacture
• machine, apparatus or other article
• substance produced by manufacture

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• and includes any new and useful improvement of
  any of them,
• Therefore an invention is the creation of
  intellect applied to capital and labour, to
  produce something new and useful.

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• APPLICATION FOR A PATENT
• An application for a patent may be made by the
  actual inventor of the invention, or an assignee
  of the right to make an application or a legal
  representative of either.
• It is the person who first applies for a patent
  who is entitled to the grant. A prior inventor of
  the invention who applies subsequently will not
  get the patent as against the first applicant

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• FORM OF APPLICATION
• 1. An application for a patent in the prescribed
  form along with the prescribed fee should be led
  in the patent office and every application shall
  be for one invention only.
• 2. Where the application is made by virtue of
  assignment of right to apply, proof of such right
  shall be filed

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• 3. The application shall state that the applicant
  is in possession of the invention and give the
  name of the owner claiming to be the true and
  first inventor and where the person so claiming
  is not the applicant the application shall
  contain a declaration that the applicant believes
  the person so named to be the true and first
  owner.

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• 4. Every such application is to be accompanied by
  a provisional or complete specification.
• 5. Where the application is accompanied by a
  provisional specification, a complete
  specification should be filed within twelve
  months from the date of filing the application.
  If this is not done the application shall be
  deemed to be abandoned

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• 6. The complete specification should fully
  describe the invention and the method by which it
  is to be carried out. It should disclose the best
  method of performing the invention known to the
  applicant and end with a claim or claims defining
  the scope of the invention for which protection
  is claimed.

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PROCEDURE ON RECEIPT OF APPLICATION

• .The application filed is referred by the
  Controller to the Examiner who makes an inquiry
  to see whether it complies with the requirements
  of the Act and Rules, whether there is any lawful
  ground of objection of the grant of the patent,
  and whether the invention has already been
  published or claimed by some other person.

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• 2. The examiner makes a search in the patent
  office for specifications of prior applications
  and Patents to see whether the same invention has
  ready been published or claimed or is the subject
  matter of existing or expired patens.
• A report is accordingly made to the Controller
  within 14 months form the date of reference

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• 3. The patent office after examination of the
  application will communicate to the applicant the
  objections, if any to the grant of a patent. If
  the objections are not satisfactorily met the
  Controller of Patents after giving an opportunity
  of hearing to the applicant will refuse the
  application.

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• 4. If the applicant satisfactorily removes the
  objections the controller will accept the
  complete specification and advertise it in the
  official Gazette.
• 5. A request for sealing the patent can be made
  not later than the expiration of six months from
  the date of publication.

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RIGHTS OF A PATENTEE

• The owner of the "Patent", i.e. patentee is
  entitled to deal with such property in the same
  manner as owner of any other moveable property.
• The patentee can sell the whole or part of this
  property (Patent).
• He can also grant license to other to use the
  patented property.
• He can also assign such property to any other.

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• Such sale, license or assignment of such patented
  property naturally has to be for valuable
  consideration, acceptable mutually.

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PERIOD OF PATENT

• 1. In respect of process patents relating to
  drugs and food, the term is five years from the
  date of sealing the patents or seven years from
  the date of the patent whichever is shorter.
• 2. In respect of all other patents the term is
  fourteen years from the date of the patent. A
  patent is kept alive only by paying the renewal
  fee from time to time

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• USE OF PATENTED INVENTION BY THE CENTRAL
  GOVERNMENT
• The grant of patent confers the exclusive right
  of use on the patentee for commercial gain but
  the Act recognizes that the Central Government
  may use any invention even without the payment of
  royalty to the inventor.
• The idea is that the invention can be put to use
  for general public benefit by the government in
  certain circumstances when the patentee would
  have to forego his commercial gain in the general
  public interest.

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• SOME RESTRICTED USE OF PATENTED INVENTION
  PERMISSIBLE UNDER THE LAW- The essence of a
  patent is conferring of the exclusive right on
  the patentee. Yet some restricted use of a
  patented invention by a person other than the
  patentee is permissible under the law. For such
  instance, use of a patented invention is
  permissible for research or experimental purposes
  or for imparting knowledge or instructions to
  pupils. 

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 INFRINGEMENT OF THE PATENT

•  The right conferred by the Patent is the
  exclusive right to make, use, exercise, sell or
  distribute the invention in India. Infringement
  consists in the violation of any of these rights.
  The act expressly provides that use by a person
  other than the patentee, patentees assignee or
  licensee would be an infringement of the patent
  and as such illegal.

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• REMEDY FOR INFRINGEMENT OF PATENT
• An action for infringement must be instituted by
  way of a suit in any District Court or a High
  Court having jurisdiction to entertain the suit.
• The plaintiff on satisfying the court about
  infringement of his patent would be entitled to
  the following relief

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• 1. Interlocutory injunction
• 2. Damages
• 3. Account of profits

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• INTELOCUTORY INJUNCTION
• The Plaintiff may at the commencement of the
  action move for an interim injunction to restrain
  the defendant from committing the acts complained
  of until the hearing of the action or further
  orders. The plaintiff should make out a prima
  facie case and also show that the balance of
  convenience lies in his favour

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• DAMAGES
• In assessing the damages the important question
  is what is the loss sustained by the patentee.
  The loss must be the natural and direct
  consequence of the defendants acts. The object
  of damages is to compensate for loss or injury.

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• ACCOUNTS OF PROFITS
• Where a patentee claims the profits made by the
  unauthorised use of his patent, it is important
  to ascertain how much of his invention was
  appropriated, in order to determine what
  proportion of the net profits realised by the
  infringer was attributable to its use

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PATENT FAQ

• What is a patent?
• A patent is a monopoly right granted by the
  government to a person who has invented a new
  useful articles or an improvement of an article
  or a new process of making an article. It
  consists of an exclusive right to manufacture the
  new article invented or manufacture an article
  according to the invented process for a limited
  period. After the expiry of the duration of
  patent, anybody can make use of the invention

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• Who can apply for a patent?
•    i) Any person being the inventor of an
  invention or his assignee can apply alone or
  jointly with any other person.
•   ii) Applicant of a application in a basic
  convention country can apply by himself or
  through his assignee.
•   iii) Applicant of a basic application in a
  basic convention country can apply by himself or
  through his assignee.

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• What is a patentable invention?
•  As per the Indian Patents Act ,1970 invention
  means any new or useful -
•   i) art , process , method or manner of
  manufacture
•   ii) machine ,apparatus or other article.
•   iii) Substance produced by manufacture and
  includes any new and useful improvement of any of
  them and alleged invention .

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• Whether a Foreign National is competent to file
  patent application in India?
• Yes .A Foreign National residing abroad is not
  prohibited from making an application and
  obtaining the grant of patent in India.

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• Can a Firm or a company apply for a patent ?
• Yes. A Partnership firm , a Private or Public Ltd
  company or a Corporation can apply for a patent
  .But they cannot invent and therefore cannot be
  termed as 'inventor'. Hence such bodies can apply
  for patent as the assignee of the 'inventor'
  under the Indian Patents Act,1970.

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• Whether the 'prior sale' can be made before
  filing patent application?
•  No. The invented article must not be put in the
  market for sale or be physically sold under the
  invoice before filing patent application in the
  patent office. Otherwise the invented article or
  process will loose novelty to create sufficient
  grounds for invalidating the chances of getting a
  patent. Hence the novelty in the invention is
  lost if the article is demonstrated , worked or
  sold .Therefore it is advisable not to commence
  the commercial marketing of an invented article
  before applying for patent.

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• How long does it take to grant patent ?
• At present on an average it takes about 4-5 years
  from the date of filing application .It may be
  reduced in future because of computerization of
  Patent offices.

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• What is a specification ?
• A patent specification is a technical document
  describing the invention. A specification may be
  either provisional or complete. Provisional
  specification gives the initial description of an
  invention when the application is filed .A
  complete specification gives full and sufficient
  of an invention.

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• What is meant by 'term of a patent'?
• The term of the patent is meant for duration of
  the validity of the patent.
• i) The term of patent will be FIVE years for
  food, drug, medicine cases from its sealing date
  of seven years from the date of patent whichever
  is shorter.
•  ii) The term of patent in respect of other
  inventions will be FOURTEEN years from the date
  of patent (i.e. date of filing complete
  specification).

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• Is it possible to take legal action for
  'infringement of patent' during the pendency of a
  patent application?
• No. It is not possible to initiate legal action
  against the infringers during the pendency of
  patent application patent is a statutory right
  granted by the government .It will take minimum
  of 4 to 5 years for examination of patent
  application and then only it will be decided '
  whether to grant a patent or not'. Till then it
  will be called as 'invention' only. Until the
  statutory right is conferred upon the applicant
  for his invention, the question of infringement
  will not arise. Further there is no common law
  rights like that of 'passing off' in trademark
  matters for the patent applicants.