Patent Act :
A patent is an exclusive right granted by the Government to the inventor to exclude others to
use, make and sell an invention is a specific period of time. A patent is also available for
improvement in their previous Invention. The main motto to enact patent law is to encourage
inventors to contribute more in their field by awarding them exclusive rights for their
inventions. In modern terms, the patent is usually referred to as the right granted to an
inventor for his Invention of any new, useful, non-obvious process, machine, article of
manufacture, or composition of matter. The word “patent” is referred from a Latin term
“patere” which means “to lay open,” i.e. to make available for public inspection. There are
three basic tests for any invention to be patentable:
● Firstly, the invention must be novel, meaning thereby that the Invention must not
be in existence.
● Secondly, the Invention must be non- obvious, i.e. the Invention must be a
significant improvement to the previous one; mere change in technology will not
give the right of the patent to the inventor.
● Thirdly, the invention must be useful in a bonafide manner, meaning thereby that
the Invention must not be solely used in any illegal work and is useful to the world
in a bonafide manner.
Criteria to be fulfilled:
Sections 3 and 4 of the Indian Patents Act, 1970 clearly mentioned the exclusions regarding
what can be patented in India. There are certain criteria which have to be fulfilled to obtain a
patent in India. They are:
1.Patent subject:
The most important consideration is to determine whether the Invention relates to a patent
subject matter. Sections 3 and 4 of the Patents Act list non-patentable subject matter. Unless
the Invention comes under any provision of Section 3 or 4, it means that it consists of a
subject for a patent.
2.Novelty:
Innovation is an important criterion in determining the patent potential of an invention. Under
Section 2(l) of the Patent Act, a novelty or new Invention is defined as “no invention or
technology published in any document before the date of filing of a patent application,
anywhere in the country or the world”. The complete specification, that is, the subject matter
has not fallen into the public domain or is not part of state of the art”.
3.Inventive Steps:
An invention considered as new if, on the date of filing the application, any such invention is
not known to the public in any form, i.e. oral, writing, or any other form. Anything shall not
be termed as inventive if such a thing is already known to the public domain.
4.Capable of industrial application:
Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the invention is
capable of being made or used in an industry”. This basically means that the Invention cannot
exist in the abstract. It must be capable of being applied in any industry, which means that it
must have practical utility in respect of patent.
Term and Boundary of a Patent:
The patent has a limited term of 20 years, which is counted from the date of filing of the
patent application. A patent is a territorial right. Thus it can only be applied in the country
where it has been granted. A patent is a territorial right. Thus it can only be applied in the
country where it has been granted. Therefore, any legal action against infringement or
infringement of patent rights can only be taken in that country. To obtain patent protection in
different countries, each country must apply for a patent.
Types of Patents:
Utility Patents
A utility patent is the most common type of patent that people seek. This type of patent
covers:
● Processes
● Compositions of matter
● Machines
● Manufacturers that are new and useful
A utility patent can also be obtained for new and useful improvements to existing processes,
compositions of matter, machines, and manufacturers.
● "Processes" refers to any acts or methods of doing something, usually involving
industrial or technical processes.
● "Compositions of matter" is the term for chemical compositions that can include a
mixture of ingredients or new chemical compounds.
● "Machines" includes anything that is generally defined as a machine, such as a
computer.
● "Manufacturers" are defined as goods that are manufactured or made.
Utility patents have a maximum patent term of 20 years from the filing date of the utility
patent application. Additionally, maintenance fees are required for utility patents to keep
them in force and maintain legal protection.
Design Patents
A design is defined as the "surface ornamentation" of an object, which can include the shape
or configuration of an object. To get this type of patent protection, the design must be
inseparable from the object. While the object and its design must be inseparable, a design
patent will only protect the object's appearance. An example of a design patent is the original
glass bottle shape of Coca-Cola.
Design patents protect the ornamental design of a product rather than its functional features.
To protect the functional or structural features of an object, a person must also file for a
utility patent.
Plant Patents
A plant patent can be obtained to protect a distinctive new variety of plants. A few
requirements to get this type of patent:
● That the plant is not tuber-propagated (meaning it won't cover an Irish potato, for
example)
● That the plant is not found in an uncultivated state
● That the plant can be asexually reproduced
Asexual reproduction means that instead of being reproduced with seeds, the plant is
reproduced by grafting or cutting the plant. Plant patents require asexual reproduction.
Asexual reproduction is proof that the patent applicant can reproduce the plant.
Rights of Patentee
1.Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or
distribute the patented article or substance in India, or to use or exercise the method or
process if the patent is for a person. This right can be exercised either by the patentee himself
or by his agent or licensees. The patentee’s rights are exercisable only during the term of the
patent.
2.Right to grant license: The patentee has the discretion to transfer rights or grant licenses or
enter into some other arrangement for a consideration. A license or an assignment must be in
writing and registered with the Controller of Patents, for it to be legitimate and valid. The
document assigning a patent is not admitted as evidence of title of any person to a patent
unless registered and this is applicable to assignee not to the assignor.
3.Right to Surrender: A patentee has the right to surrender his patent, but before accepting the
offer of surrender, a notice of surrender is given to persons whose name is entered in the
register as having an interest in the patent and their objections, if any, considered. The
application for surrender is also published in the Official Gazette to enable interested persons
to oppose.
4.Right to sue for infringement: The patentee has a right to institute proceedings for
infringement of the patent in a District Court having jurisdiction to try the suit.
Patent Infringement
Patent infringement is a violation which involves the unauthorized use, production, sale, or
offer of sale of the subject matter or Invention of another’s patent. There are many different
types of patents, such as utility patents, design patents, and plant patents. The basic idea
behind patent infringement is that unauthorized parties are not allowed to use patents without
the owner’s permission.
When there is infringement of patent, the court generally compares the subject matter covered
under the patent with the used subject matter by the “infringer”, infringement occurs when
the infringer Uses patent material from in the exact form. Patent infringement is an act of any
unauthorized manufacture, sale, or use of a patented invention. Patent infringement occurs
directly or indirectly.
Direct patent infringement: The most common form of infringement is direct infringement,
where the Invention that infringes patent claims is actually described, or the Invention
performs substantially the same function.
Indirect patent infringement: Another form of patent infringement is indirect infringement,
which is divided into two types:
Infringement by inducement is any activity by any third party that causes another person to
infringe the patent directly. This may include selling parts that can only be used realistically
for a patented invention, selling an invention with instructions to use in a certain method that
infringes on a method patent or licenses an invention that is covered by the patent of another.
The inducer must assist intentional infringement, but does not require intent to infringe on the
patent.
Contributory infringement is the sale of components of material that are made for use in a
patented invention and have no other commercial use. There is a significant overlap with
indications, but contributor violations require a high level of delay. Violations of the seller
must have direct infringement intent. To be an obligation for indirect violations, a direct
violation must also be an indirect act.
Remedies for Patent Infringement
Several remedies are available to patent owners in the event of an infringement. Measures
available in patent infringement litigation may include monetary relief, equal relief and costs,
and attorneys’ fees.
1.Monetary Relief: Monetary relief in the form of compensatory damages is available to
prevent patent infringement:
2.Indemnity compensation – A patent owner may have lost profits for infringement when
they established the value of the patent.
3.Increased damage – Up to three times, compensation charges can be charged in cases of
will or violation of will.
4.The time period for damages – The right to damages can be claimed only after the date
when the patent was issued and only 6 years before the infringement claim is filed.
5.Equitable relief: Orders are issued by the court to prevent a person from doing anything or
Act. Injections are available in two forms:
6.Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that prevent
parties from doing an act that is in dispute (such as making a patent product)
7.Permanent injunction – A final order of a court which permanently ceases certain activities
or takes various other actions.
Procedure of filing/registering a Patent
Step 1: Write about inventions (idea or concept) with each and every detail.
Collect all information about your Invention such as:
1. Field of Invention
2. What does the Invention describe
3. How does it work
4. Benefits of Invention
Step 2: It must involve a diagram, drawing and sketch explains the Invention
Drawings and drawings should be designed so that the visual work can be better explained
with the invention work. They play an important role in patent applications.
Step 3: To check whether the Invention is patentable subject or not.
Not all inventions can be patentable, as per the Indian Patent Act there are some inventions
which have not been declared patentable (inventions are not patentable).
Step 4: Patent Discovery
The next step will be to find out if your Invention meets all patent criteria as per the Indian
Patent Act-
1. The invention must be novel.
2. The Invention must be non- obvious.
3. The Invention must have industrial applications.
Step 5: File Patent Application
If you are at a very early stage in research and development for your Invention, then you can
go for a provisional application. It offers the following benefits:
1. Filing date.
2. 12 months time for filing full specification.
3. Lesser cost.
After filing a provisional application, you secure the filing date, which is very important in
the patent world. You get 12 months to come up with the complete specification; your patent
application will be removed at the end of 12 months.
When you have completed the required documents and your research work is at a level where
you can have prototypes and experimental results to prove your inventive move; you can file
the complete specification with the patent application.
Filing the provisional specification is an optional step if you are in the stage where you have
complete knowledge about your Invention you can go straight to the full specification.
Step 6: Publication of the application
Upon filing the complete specification along with the application for the patent, the
application is published 18 months after the first filing.
Step 7: Request for Examination
The patent application is scrutinized only after receiving a request for an RFE examination.
After receiving this request, the Controller gives your patent application to a patent examiner
who examines the patent application such as the various patent eligibility criteria:
1. Patent subject
2. Newness
3. Lack of clarity
4. Inventory steps
5. Industrial application
6. By enabling
The examiner makes the first examination report of the patent application upon a review for
the above conditions. This is called patent prosecution. Everything that happens for a patent
application before the grant of a patent is usually called patent prosecution.
Step 8: Answer the objections
Most patent applicants will receive some type of objections based on the examination report.
The best thing is to analyse the examination report with the patent professional (patent agent)
and react to the objections in the examination report.
Step 9: clearance of objections
The Controller and the patent applicant is connected for ensuring that all objections raised
regarding the invention or application is resolved and the inventor has a fair chance to prove
his point and establish novelty and inventive steps on other existing arts.
Step 10:
Once all patent requirements are met, the application will be placed for the grant. The grant
of a patent is notified in the Patent Journal, which is published periodically.
