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What is Patent

A Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. The exclusive right is to manufacture the new process of making an article invented or manufacture an article according to invented process for a limited period. During the term of the patent the owner of the patent, i.e. the patentee can prevent any other person from using the patented invention. After the expiry of the duration of the patent anybody can make use of the invention. The invention then becomes part of the public domain.


Benefits of Patent Registration

Comment: A patent gives you the right to exclude others from making your product. Patents are useful in preventing your competitors from exploiting your invention. You can force your competitors to design around your invention (if that is possible) which can cost them time and money. It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention. It may put you in a stronger position with other companies who have Patents in which you are interested. You can make money by licensing or selling your invention to someone else. It gives you priority over third parties wanting to register their patents in countries that do not require registration. Customers are often impressed by ‘Patented Technology’ so patenting can have a positive role to play in your marketing strategy Patents are often a good ‘keep off the grass’ warning to other businesses. Many competitors are now more aware of Patents and the consequences of being found to be infringing a Patent.

How can one find out that an invention is already patented?

Comment: The person concerned can perform a preliminary search on Patent Office website in the Indian patent data base of granted patent or Patent Office journal published every week or by making search in the documents kept in the Patent Office Search and Reference Room, which contains Indian patents arranged according to international patent classification system as well in serial number. It is open to the general public from Monday to Friday, except Gazetted holidays. The public can also conduct search free of charge on the website of Patent Office. The person concerned can also make a request for such information under section 153 of the Act.

What is Patentable?

Comment: Art, Process, Method or Manner of manufacture. Machine, Apparatus or other Articles. Computer Software which has Technical application to Industry or is used with Hardware. Product Patent for Food / Chemical / Medicines or Drugs. Substances produced by manufacture and include any new and useful improvements of any of them and an alleged invention. Inventions claiming substances intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi conductors and inter-metallic compounds) are now patentable under the patent ordinance 2004

What rights does a patent provide?

Comment: The right to prohibit (see previous question) does not automatically include the right for the inventor to make, use, sell, import and/or offer the invention for sale. Anyone is free, however, to engage in such activities unless there is a law prohibiting it.

Who can apply for a patent?

Comment: A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

Why should one patent his invention?

Comment: If your invention has market potential and you think that another company could make profits from your invention, you need protection from a patent. To enjoy exclusive rights over the invention. If the inventor does not obtain patent rights for his invention and introduces his product/process based on his invention in the market, anybody can copy his invention and exploit it commercially. To debar others from using, selling, offering for sale or manufacturing the inventor must obtain a patent. The inventor can use it himself/herself, sell or license it to profit commercially.

What technology is protectable under a patent?

Comment: The invention must be new, useful, and non-obvious. Typically inventions are aesthetic designs, functional items, functional methods, or asexually reproduced plants.

What is the term for patent?

Comment: In India, generally the term for patent is twenty years.

What is the nature of information needed while consulting a patent attorney ?

Comment: An explanation of the history of the invention, where you got the idea from, how you developed it, any early failures and possibly prototypes, with all your laboratory note books, etc., if possible. This will help the patent agent to explain the inventive step which is necessary for obtaining the patent. What you think is the most inventive element or most useful aspect, together with what other similar prior inventions you know of or have developed the idea from or improved upon. If you have developed an improved version of your competitor’s products, admit it; be totally honest. It is vital to be such so that the patent agent can describe your invention properly while drafting the application and avoid excessive claims which might be struck down Drawings if any, which may illustrate the invention, should be attached

Where can I patent it ?

Comment: The decision of where to patent is a commercial decision based upon the importance of the patented invention, the potential scope of protection provided by the Claims of the Patent, and the likely costs involved in securing and maintaining patent protection in any given country. Patent protection is available in most countries so you have to decide where to file your applications. In India, Patent application can be filed at the Patent office of Delhi or Kolkata or Mumbai.

Does Indian Patent give protection worldwide ?

Comment: Patent protection is territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.

When an application for patent is published ?

Comment: Every application for patent is published after 18 months from the date of its filing or priority date whichever is earlier. However, following applications are not published.

What is “Patent Pending” and “Patent Applied for” ?

Comment: The terms “Patent Pending” and “Patent Applied For” are used to inform the public that an application for a patent has been filed. Patent protection does not start until the actual grant of a patent. Marking of an article as patented, when it is not, is illegal and subject to penalty.

How useful is the marking of a product with “patent pending” or “patent applied for” before the grant ?

Comment: Marking of a product with the words “patent pending” or “Patent applied for” after filing of the application for patent serve as a notice to the public that an application for patent is pending with the Patent Office but there is no legal significance of these words. The infringement action can be initiated only after the patent is granted.

Is it possible to file International Patent Application under Patent Cooperation Treaty (PCT) in India ?

Comment: Yes, It is possible to file an international application known as PCT application in India in the Patent Offices located at Kolkata, Chennai, Mumbai and Delhi. All these offices act as Receiving Office (RO) for International application.

Can I keep some information about my invention a secret ?

Comment: There is a requirement that the invention be completely disclosed. Failure to disclose will invalidate the resulting patent. One cannot maintain information important to the patent as trade secret if the information was known as of the filing date.