A Patent is a legal document which is granted by the government to the inventor for a limited period for the invention that they have created. The purpose of the patent is to protect the exclusive rights of a patent holder for a specified period of time from individual imitators and independent developers who have similar ideas about the same invention. It helps the national economy to grow and promotes healthy competition by encouraging an environment of research and development which in turn will increase global investments towards experimentation.
Who can file a Patent Application
Application may be filed by:
- True and first inventor
- Assignee of inventor
- A legal representative of the inventor
The applicant may be a citizen of any country
The application shall be accompanied by specifications. Each specification must contain only one invention, and if there are multiple inventions, separate applications must be filed for each.
In the case of provisional application the contents shall be:
- Written Description
- Drawings or Samples or Models
Contents of a Specification
- Written Description – The written description is possible the most important part of an application. It brings forth the background of the invention and explains in clear detail the working of the invention. It may also include examples and drawings
- Drawings/samples/models as necessary
- Enablement – The applicant must “enable” the invention such that a person with ordinary skill in the art may make and work the invention.
- Best Mode – The applicant must describe the best mode of working the invention
- Claims – He must define the bounds of an invention
- Deposit – If an invention involves micro-organisms, it has to be deposited at a recognized depository.
Provisional Application for Patent
- Cannot be filed if an application has been filed in a convention country using a PCT application.
- Complete specification to be filed within 12 months of filing a provisional application.
- Can be extended to 15 months
Date of first filing allotted to an application, and the earlier of:
- Date of filing of the application
- Date of filing of the Provisional application
- Date of filing of foreign or PCT application
- Date of filing of parent application where the application is split
- Priority Date is used to determine the novelty of an invention and if it has been sold, imported, used or displayed in public before, the invention will not be patentable.
It shall be published:
- 18 months after the priority date
- Earlier if a request is made an applicant
- At the termination of directions, if they are given for secrecy
- Not be published if an application is withdrawn 3 months before publication date
The specification and any drawings or deposits shall be published and open to public inspection. The patentees’ rights as a patent-holder begin from the date of publication but are enforceable to their benefit only after the patent is granted.
Request for Examination
To start the process, a request for examination shall be filed:
- Before 36 months from the date of priority or filing
- Six months after the revocation of secrecy direction or 36 months from the date of priority or filing, whichever date is later, if secrecy directions have been given in the application.
The request for examination is referred by the Controller of patents to an Examiner.
The examination shall include:
- Verification of correctness of all documents filed with an application
- Confirmation that application is subject matter to patentability
- Novelty – Prior art search for anticipation – via publication or filing of the complete specification
- Verification of inventive step
- Verification of industrial application
- Verification of enablement and best mode – The examiner verifies that the applicant must “enable” the invention such that a person with ordinary skill in the art may make and work the invention. And that the applicant has described the best mode of working the invention.
- Analysis of all patentability requirements
The report is given within 1 month from the reference by the Controller and a maximum of 3 months from reference.
Upon an adverse report, notice is given to the applicant. An opportunity may be given to correct and an opportunity may be given for a hearing. Further, the applicant may be asked to make amendments failing which the application might be rejected.
Powers of the Controller
- Power to divide – The application may be ordered to be divided if the specifications contain more than one invention. There will be an order passed for separate applications for each invention
- Post-dated – The application may be post-dated by a period of six months if so requested
- Substitute applicants – If there is a joint inventor who has not been mentioned or a wrong mention of an inventor then there may be an order for substitution
- Rejection – The controller has the power to reject the application, for non-compliance to his orders or the requirements.
Once the application is published any person may file an opposition on the grounds of non-compliance with requirements or non-disclosure of traditional methods.
An opposition board is constituted and the parties are given reasonable opportunity to be heard. The board may reject the application or ask for amendments.
Upon the examiner and the controller’s satisfaction that the invention satisfies all the requirements of the act, the application is said to be granted. The granted patent is published in the official gazette, and the patent will be valid throughout India from the date of publication. The patent-holder shall have the exclusive right to make, use, sell and license the invention.
Within 12 months of the grant of the patent, an opposition may be filed on various grounds, including sale, import, public use or display of the invention prior to filing. The process of opposition is the same as in pre-grant opposition. If the opposition is found to be true the patent is invalidated, or there may be the requirement for amendments.
Government and Educational use
- The government can use the patent for its own purpose, or to distribute an invention relating to medicine for hospitals
- Any person can use the patent for educational or experimental purposes.