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How to obtain a Patent?

A patent is an intellectual property right which provides protection to an inventor for an invention made by him. This Article throws light on the meaning of patent and the method by which one can obtain a patent in India.

A patent is a 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. [1]

A patent is territorial in extent which means patent granted in one state cannot be enforced in another state unless the invention is patented in the other state also. It is to be noted that patent does not exist in ideas. An idea must be implemented and an invention must be made in order to make it patentable.

Object of Patent

The basic object of patent is to encourage new inventions. If a person is not rewarded or protected he will not be interested to make new inventions. Thus, patent protects the inventor and encourages him to make new inventions.

Requirements for an invention to be Patentable

1. Novelty – A thing to be patented must be novel or new. Novelty cannot be claimed if there has been prior use of such invention
2. Usefulness – An invention cannot be patented if it is of no use to the mankind.
3. Inventive Step – The invention should not be obvious to a person skilled in the art to which the invention relates.
4. Industrial Applicability – The invention should be capable of application by technical means on a large .

Procedure of obtaining a Patent

The following is the procedure to get a patent in India. Section 6 of the Patents Act, 1970 provides who may apply for patents. The following persons can make an application for patents:
(i) Any person claiming to be the true and first inventor of the invention.
(ii) Any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application.
(iii) Legal representative of any deceased person who immediately before his death was entitled to make such an application

The application may be made individually or jointly. [2]

Section 7 of the Act deals with the form of application required. [3] According to it an application should be made for an invention in the prescribed form and filed in the patent office . The application should state that the applicant has possession of the invention and the name of the person claiming to be the true inventor must be mentioned. If the application has not been made by the true inventor there must be a declaration that the applicant believes that such person is the true and the first inventor of the invention.

The application should be accompanied by a provisional or complete specification. The provisional specification shall contain about the invention in brief. The complete specification must be submitted 12 months after the filing of the application for patent. The complete specification should describe the invention in a detailed manner. It should mention the best method to use such invention. Such specification should end with a claim or claims defining the scope of such invention. Abstract containing technical information of the invention must be submitted along with the complete specification. Claims must relate to a single invention and should contain drawings wherever required.

The application of patent shall be published in a public platform after a period of 18 months from the date of filing or date of priority whichever is earlier. Then the applicant should make a request for examination of the application. Such examination is made by the examiners of patents. He checks whether the application is consistent with the requirements of the Act and whether there is any lawful ground of objection for the granting of patent. Another ground that has to be considered is that whether such invention has been published or claimed by any other person. To facilitate this the examiner makes a search in the publications available in the Patent Office and specifications of prior applications.

After such examination, the Patent Office shall communicate to the applicant relating to the objections for granting of patent. It is the duty of the applicant to deal with and remove such objections. After removal of the objections the Controller will accept the complete specification and it shall be advertised in the Official Gazette. After acceptance of the complete specification, the applicant shall receive benefits of the grant except being entitled to institute infringement proceeding until the patent is granted.

A notice of opposition by any person who is interested is allowed within 3 months from the date of publication in the Official Gazette. A copy of the notice of opposition shall be forwarded by the Controller to the applicant. The applicant may file a reply statement within a month from the date of receipt of the copy. Then the process of providing evidences and hearing goes on. The matter is heard and decided. When the application is accepted without opposition the patent will be granted. If the inventor is interested, he may make a request for mentioning his name in the patent. The final decision regarding mentioning of name depends on the Controller. Mentioning of name does not in any way confer or take away any rights of the Patentee.

Term of Patent:

According to the Patents Amendment Act, 2002 the term of every patent shall be 20 years. The procedure of keeping a patent alive is by paying the renewal fee from time to time.

Rights of a Patentee

The following are the rights of a Patentee:
1. Right to exploit patent
2. Right to assign and licence
3. Right to surrender

Limitation of the rights of a Patentee

1. Government use of Patent
2. Compulsory Licences
3. Revocation for non-working
4. Invention for defence purposes
5. Use in foreign vessels

Conclusion In order to obtain a patent in India these steps are to be followed. Non compliance to these steps leads to non grant of patent.

References [1]Dr.S.R.Myneni, Law of Intellectual Property, 323, (2nd edition 2003), Asia Law House, Hyderabad
[2]Section 6, The Patents Act, 1970
[3]Section 7, The Patents Act, 1970

Written by: Anwesa Mohanty

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