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Patent

What is Patent rights?

Patents allow the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator's permission. Patent right can be obtained for Machineries, Food Industries, Drug Industries (Pharmaceutical Industries).

Who is True and First Inventor ?

True and first inventor is the one who is both a true inventor and also the first in making application for the patent.

It must both be subject of commercial offer and ready for patenting. It is ready for patenting if the inventor has prepared drawings or other descriptions of the invention that are sufficiently specific to enable a person skilled in the art to practice the invention. Thus, a true inventor in relating to an invention is the actual deviser of the invention. Actual devisers may be many. But who makes an application for patent first in point of time is the true and first inventor. First in point of time in making the application and not the first in making the invention, determines who is the true and first inventor for the purpose of the Act.

What may be patented ?

Any invention which satisfies the definition of the " invention" given in the Act may be patented.

As defined in Section 2(1)(j) of the Act; an invention means:-

  • any new and useful art, process, method or manner of manufacture;
  • any new and useful machine, apparatus or other article;
  • any new and useful substance produced by manufacture, and includes any new and useful improvement of any of them and an alleged invention.
 

A bicycle patent model, the work of William Klahr, featured a new manner of propelling the bicycle - a combination of pedals and a ratchet - wheel - and an adjustable saddle mounted on a spring bar. Klahr's was one of many improvements patented during the 1870s and 1880s that brought great popularity to bicycling.

Charles Hammelmann's patented improved velocipede model featured a ratchet to propel the vehicle forward and prevent it from moving backward. " In the ordinary course of travel", Hammelmann maintained, "no backing of the machine is necessary".

What cannot be patented ?

The following are not " inventions " within the meaning of the Act, and hence not patentable (Section 3)

  • An invention which is frivolous or which claims anything obviously contrary to well established natural laws;
  • An invention the primary or intended use of which would be contrary to law or morality or injurious to public health;
  • The mere discovery of a scientific principle or the formulation of an abstract theory;
  • The mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;
  • A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
  • The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way;
  • A method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture;
  • A method of agriculture or horticulture;
  • Any process for medicinal, surgical, curative, prophylactic, or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.

Inventions in respect of which only methods or process of manufacture are patentable.

The invention must be new - that is, the subject matter of the invention is not or cannot be inferred to be part of what is already known. This is commonly referred to as the " novelty" requirement. New or novel in this context means " new to the public ". Therefore, something that has previously been used or known but has not been made available to the public (for instance, if it has been kept at secret) is not a bar to patentability.

The invention must also be non obvious. This prevents someone from taking advantage of the patent system and obtaining protection for something that is a mere extension or trivial variation of what is known. Generally the test for inventiveness, or " non obviousness, " is based on what a reasonable person skilled in the field to which the invention pertains, at the time the invention was made, would consider to be non obvious.

The TRIPS Agreement provides a transitional period of developing economies that do not currently provide product patent protection in the areas of agro-chemicals or pharmaceuticals. In fact, most already do because of the development benefits to the biotechnology sector from full patent protection. Process patent protection does not encourage investment because of the difficulty of enforcing a process patent.

It is particularly difficult to enforce a process because of the burden of proof to show that the patent has been infringed is one the patent owner. The patent owner must prove that a particular manufacturing process (that is, the process covered by the patent) was used to manufacture the particular chemical. This can be very difficult to show where there are many possible process variants and where access to the potential infringer's facility is not available. In practice, this is done by looking for trace impurities that are characteristic of the manufacturing process.

Term of the Patent:

The Patent Amendment Act, 2002, amended section 53, which relates to term of a Patent of 20 years. Rights obtained from Patent

Patent given under the old provision conferred upon the patentee the exclusive right by himself, his agents or licensees to :-

  • Make, use, exercise, sell, or distribute the patented article or substance;
  • Use or exercise the patented method or process in India.

Renewal fee

Renewal fee are payable every year. The first renewal fee is payable for third year of the Patent's life, and must be paid before the patent's second anniversary.

No renewal fees are payable during the pendency of application for a patent.

Procedure for obtaining a patent

The following are the successive stages for obtaining a Patent.

  • Filing an application for a patent accompanied by either a provisional specification or a complete specification;
  • Filing the complete specification if a provisional specification accompanied the application;
  • Examination of the application;
  • Acceptance of the application and advertisement of such acceptance in the Official Gazette.
  • Overcoming opposition, if any, to the grant of a Patent;
  • Sealing or grant of the Patent (to be done by HO at Kolkata)

Complete specification

The complete specification should contain -

  • title of the invention,
  • name, nationality and address of the applicant or each of the applicants,
  • prescribed preamble to the description of the invention,
  • description of the invention and the manner in which it is to be performed,
  • statement of claims and date and signature of the applicant

The description of the invention should being with the following preamble:-

" The following specification particularly describes and ascertains the nature of this invention and the manner in which it is to be performed ?After the preamble, the nature of the invention and the manner in which it is to be performed should be fairly described and ascertained.

The complete specification shall-

  • fully and particularly describe the invention and its operation or use and the method by which it is to be performed;
  • Disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection; and
  • End with a claim or claims defining the scope of the invention for which protection is claimed.The description given in the specification should be sufficient to enable any person reasonably skilled in the art to which the invention relates, to put the invention into practice without further assistance from the inventor, and obtain the results claimed for the invention.

Infringement of Patent:

Infringement of a Patent consists of the unauthorized making, using, offering for sale or selling any patented invention during the term of the patent.

If a patent is infringed, the patentee may sue for relief in the appropriate court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement.

Patent cooperation treaty (PCT)

Do you want to protect your invention in several countries ?

Is so, you should consider the advantages that are offered by filing an" international ? patent application under the Patent Cooperation Treaty (the "PCT?). By filing one international patent application under the PCT, and designating any or all of the PCT Contracting States, you can simultaneously seek patent protection for an invention in each of a large number of countries.

Do you want to evaluate your chances of protecting your invention before incurring major costs in foreign countries ?

If you do, you should consider the extra time you gain when you file a PCT application: in relation to most designated Offices, 18 months more than under the traditional patent system (based on the Paris Convention for the Protection of Industrial Property ).

Effect of an international patent application

Provided it complies with the minimum requirements for obtaining an international filing date, your international application has the effect of a national patent application in those PCT Contracting States which you have " designated " in your application. It has the effect of a regional patent application in those PCT Contracting States which are also party to a regional patent treaty (the ARIPO Harare Protocol, the Eurasian Patent Convention, the European Patent Convention and the OAPI Agreement), provided they are designated for the regional patent concerned. (It should be noted that, for some of these States, only a regional patent can be obtained via the PCT.)

Because an international patent application must be prepared in accordance with certain requirements set out in the Treaty and Regulations, which have become international standards effective in all of the PCT Contracting States, subsequent adaptation to varying national (or regional) formal requirements ( and the cost associated therewith) will not be necessary. The granting of a patent remains the responsibility of the national or regional Offices but the start of the processing of the application before those Offices (the " national phase " or " regional phase "), including examination as to substance, is generally delayed until after the end of the 30th month from the priority date.

Publication of the International application

If the international application has not been withdrawn earlier, it is published by the International Bureau shortly after 18 months from the priority date, together with the international search report, and communicated by the International Bureau to each designated Office.

Value of the international preliminary examination report

The results of the international preliminary examination are set out in an " international preliminary examination report" which is provided to you; copies are also sent by the International Bureau to the Offices concerned. The report consists an opinion on the compliance with the international criteria mentioned above (see 10) of each of the claims which has been searched. It provides you with an even stronger basis on which to evaluate your chances of obtaining patents, and, if the report is favorable, a stronger basis on which to prosecute your application before the national and regional patent Offices. The decision on the granting of a patent remains the responsibility of each of the national or regional Offices designated in the international patent application; the international preliminary examination report is authoritative but is not binding on those Offices.

PCT Contracting States

(Total : 115 on April 1, 2002)