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PATENT

PROTECTION IN
INDIA

What is Intellectual
Property?
Creation of Mind

1.

Industrial Property

2. Patents
3. Trade Marks
4. Industrial Designs
5. Geographical
Indications

Copy Rights
Including literary
and artistic works
like Plays, Novels,
Films, Musical
Works etc.

Patent
Is a grant of exclusive right
for an invention

for a limited period

by the government

in exchange of full disclosure of


invention

A territorial right

Legislations in India
The Indian Patents Act, 1970

The Patent Amendment Act,


2005

The Patent Rules, 2003 and

Amendment Rules, 2006

International Treaties

India is a member of WIPO

Conventions
--Paris Convention for Protection of
Industrial Property, w.e.f. 7.12.98
--Patent Co operation Treaty, w.e.f.
7.12.98
--Budapest Treaty w.e.f. 17.12.2001

World Trade Organization w.e.f.


01.01.1995

What Can Be Patented?


An invention

of a new product or process


having inventive steps
capable of industrial application
Sec.2(1)(j)

Requisites For A Patentable


Invention

Novelty
Inventiveness
Utility
Industrial Application

INVENTIVE STEP
Feature which make invention
non-obvious to a person skilled in
art, process,method or
manufacture.

machine, apparatus

substance produced by
manufacture

INVENTIONS NOT
PATENTABLE (Ss. 3&4)
Inventions which are

frivolous

against Natural Laws

injurious to public morality

injurious to public health of human


beings, plants and animals

discovery of scientific principles


discovery of a new property of a known
substance

INVENTIONS NOT
PATENTABLE (Ss. 3&4)
Inventions which are

productions of new substance by mere


admixture

arrangement or duplication of new devices

method of agriculture and horticulture

any process for the treatment of human


beings or animals

plants and animals and any process for


production and propagation of them

INVENTIONS NOT
PATENTABLE (Ss. 3&4)
Inventions which are

mathematical or business methods or a


computer program per se or algorithms
a literary, dramatic, musical or artistic
work or any other aesthetic creation
a mere scheme or rule or method of
performing mental act or method of
playing game

INVENTIONS NOT
PATENTABLE (Ss. 3&4)
Inventions which are

in the area of traditional knowledge


a presentation of information
topography of integrated circuits
relating to atomic energy and
invention prejudicial to the interest of
security of India

Who can apply?

By true and first inventor of the


invention or
His assignee or
His legal representative

Form of Application

Procedure for obtaining


Patents
1. Submission of Application
2. Examination of Application
3. Advertisement of acceptance of
complete specification
4. Opposition
5. Hearing
6. Grant and sealing of patent

Provisional and complete


specification

All application to be accompanied


by
provisional specification
Complete specification to be filed
within 12 months of date of
application (if not filed, Application is
deemed to be abandoned)

Contents of specification
Provisional or complete

shall describe the invention


title indicating the subject matter of
invention
Drawings
Mode or sample
its operation or the use, best method of
performance
End with a claim defining the scope of
the
invention for which protection is
claimed

Publication of Application

Patent Application open to public


after 18 months from the date of
filing
Publication in the official gazette

Examination of
Application

Controller refer the application to


an
Examiner to see if there is any
lawful objection to the grant of patent
and
whether the invention was
already been
published or claimed
Report given to controller within 18
months of reference

Search
Patent office conducts search of
specification of prior application
whether same invention had
been granted patent earlier

Objection
Objection shall be heard and
disposed of by the controller

Acceptance of complete
specification
Controller shall advertise in the
official gazette that specification
has been accepted

From that date to the date of


sealing of a patent applicant shall
have the rights and privileges as
if patent is granted

Grant and Sealing of


Patent
After acceptance of complete
specification controller shall cause
the patent to be sealed with the
seal of the patent office and date
entered in the register

Surrender of Patents

A patentee can at any time offer to


surrender by giving notice to the
controller
Controller advertise the offer and
notify interested persons
After hearing parties who oppose
surrender may revoke the patent on
his
satisfaction

Revocation of Patents
Patent may be revoked

By High Court
-- on petition of any person interested

By Central Govt.
-- on a counterclaim in a suit for
infringement of patent

Grounds for Revocation


1. Relating to Patentee
Patentee not entitled to patent
-- Patent wrongfully obtained to a person
-- Patent obtained by false suggestions
-- Failure to disclosure information
regarding foreign application
-- Non-compliance of disclosure of secrecy under
sec. 35 or grant of patent outside India under
sec
-- Amendment of specification by fraud
-- Complete specification does not disclose or wrongly
mention the source or geographical origin of biological
materials used
-- Invention claimed was available with any local or
indigenous community

Grounds relating to
invention
1.
2.
3.

4.

5.
6.

Subject of claim not an invention


Subject of claim not patentable
Invention claimed was secretly used
before the patenting date
Invention claimed already subject of
prior grant
Lacks novelty
Invention not useful

Revocation can be made on


direction by Central Govt.

in cases relating to atomic energy


say patent is mischievous to state
or prejudicial to public

TERM OF PATENT
20 years from the date of filing of
patent application

RIGHTS OF A PATENTEE
Owner of a patent has the following
rights
1. to exploit the patent
2. to license
3. to assign
4. to surrender
5. to sue for infringement

Limitations On The Rights


Of A Patentee
1.
2.
of
3.
4.
5.

Use of patent by the Government


Compulsory licenses and license
rights
for defense purposes
revocation for nonworking patents
limitation on restored patents

METHODS OF
ENFORCEMENT
Rights of patentee can be
enforced by
1. a suit for infringement of patent
2. actions of specific performance of a
contract ( license)
3. an action for recovery of royalties

DUTIES OF A PATENTEE

not to use the monopoly right


unfairly
or prejudicial to public
interest
patent product made available for
a reasonable price