Meaning of Patent
As per Section 2 (m) of the Patents Act,1970, “patent” means a patent for any invention granted under this Act. The Act by itself does not give the exhaustive or complete definition of the word patent. As per the definition of “patent” given in the Indian Patents Act,1970 it can be granted only for an invention made, therefore, it is better to know the meaning of invention as per various standard dictionaries. The word “patent” is referred from a Latin term “patere” which means “to lay open,” i.e. to make available for public inspection.
As per Cambridge dictionary, invention means something that has never been made before, or the process of creating something that has never been made before;
As per Collins dictionary, invention is the act of inventing something that has never been made or used before.
The Patents Act,1970 itself gives the definition of “invention” under Section 2 (j) of the Act which says that, invention means a new product or process involving an inventive step and capable of industrial application; “inventive step” under Section 2 (j a) as a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art; “new invention” under Section 2 (L) as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e, the subject matter has not fallen in public domain or that does not form part of the state of the art;
The crux of all these definitions will go to show that patent can only be granted for a product or process which is something new or novel.
Requirements for an invention to be patentable
- Firstly, the invention must be new or unusual, 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 not be used for any illegal purpose and must be used for the world in a bonafide manner.
Inventions that are not patentable under the Patents Act,1970
Sections 3 and 4 of the Patents Act,1970 lays down what subjects and processes cannot be patented and the same are listed below:-
- An invention which is frivolous or claims anything contrary to well established natural laws;
- An invention, the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or the environment.
- The mere discovery of a scientific principle or the formulation of or discovery of any living thing or non-living substance occurring in nature;
- The mere discovery of a new form of a known substance which does not result in the enhancement of the known, efficacy of that substance or 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 of agriculture or horticulture;
- Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
- Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- A mathematical or business method or a computer programme per se or algorithms;
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- A mere scheme or rule or method of performing mental act or method of playing game;
- A presentation of information;
- Topography of integrated circuits;
- An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
- Inventions relating to atomic energy falling within sub-section (1) of Section 20 of the Atomic Energy Act,1962
Who can file an Application for the grant of patent under the Patents Act, 1970
Section 6 of the Patents Act,1970 says that, Subject to the provisions contained in Section 134, any person who claims to be the true and first inventor of the invention, or 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; or the legal representative of any deceased person who immediately before his death was entitled to make such an application may either alone or jointly with any of the persons mentioned above may file an application for the grant of patent.
Time Limit or duration of Patent
As per Section 53 of the Patent Act,1970 the term of the patent shall be twenty years from the date of filing the application for the grant of patent.
Procedure for the grant of patent under the Patents Act,1970
After filing the application for the grant of patent, a request for examination is required to be made for examination of the application by the Indian Patent Office. After the First Examination Report is issued, the Applicant is given an opportunity to meet the objections raised in the report. The Applicant has to comply with the requirements within 12 months from the issuance of the First Examination Report. If the requirements of the first examination report are not complied with within the prescribed period of 12 months, then the application is treated to have been abandoned by the applicant. After the removal of objections and compliance of requirements, the patent is granted and notified in the Patent Office Journal.
Filing of Application for Grant of Patent in India by Foreigners
India being a signatory to the Paris Convention for the Protection of Industrial Property, 1883 and the Patent Cooperation Treaty (PCT), 1970, a foreign entity can adopt the procedure mentioned in Patents Act,1970 for filing of application for grant of patent in India.
Where an application for grant of patent in respect of an invention in a Convention Country has been filed, then similar application can also be filed in India for grant of patent by such applicant or the legal representative or assignee of such person within twelve months from the date on which the basic application was made in the Convention Country i.e. the home country. The priority date in such a case is considered as the date of making of the basic application.
Fee to be accompanied with application for the Grant of Patent
The Fees in accordance with First Schedule to the Patents Act,1970 which ranges between Rs.1600 to Rs.8800, depending on the type of applicant, has to paid while submitting an application for the grant of patent.
Opposition proceedings under Section 25 of the Patents Act,1979
The grounds for Pre and Post Grant Opposition are the same namely:
- wrongful obtaining,
- prior publication,
- prior claiming,
- prior public knowledge and use,
- not an invention,
- failure to file the information regarding foreign filing under Section 8
- convention application not made within 12 months,
- not disclosing or wrongly mentioning the source and geographical origin of biological material in the complete specification,
- complete specification was anticipated having regard to the knowledge, oral or otherwise available within any local or indigenous community in India or elsewhere (traditional knowledge).
FORM FOR APPLYING PATENT IN INDIA
The Format for the Grant of Patent is provided under Form 1 Second Schedule to the Patent Act,1970
THE PATENTS ACT 1970 (39 of 1970) and THE PATENTS RULES, 2003 APPLICATION FOR GRANT OF PATENT
(See section 7, 54 and 135 and sub-rule (1) of rule 20)
|(FOR OFFICE USE ONLY)|
|Amount of Fee
|1. APPLICANT’S REFERENCE /
IDENTIFICATION NO. (AS ALLOTTED BY OFFICE)
|2. TYPE OF APPLICATION [Please tick ( ) at the appropriate category]|
|Ordinary ( )||Convention ( )||PCT-NP ( )|
Addition ( )
Addition ( )
|Patent of Addition ( )|
|Name in Full||Nationality||Country of
|Address of the Applicant|
|3B. CATEGORY OF APPLICANT [Please tick ( ) at the appropriate category]|
|Natural Person ( )||Other than Natural Person|
|Small Entity ( )|| Startup
|Others ( )|
|4. INVENTOR(S) [Please tick ( ) at the appropriate category]|
|Are all the inventor(s)||Yes ( )||No ( )|