Patents are granted by the Government, for the commercial exploitation of an invention for a specific period of time in consideration of the disclosure of the invention so that on expiry of the terms of the patent the information can benefit the public at large.
Patentable Inventions:
A patent can be granted for an invention which may be related to any process or product. The word “Invention ” has been defined under the Patents Act 1970 as amended from time to time.
“An invention means a new product or process involving an inventive step and capable of industrial application”
” New invention” is defined 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 it does not form part of the state of the art;
Where,
Capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry
Therefore, the criteria for an invention to be patentable are:
- An invention must be novel
- has an inventive step
- is capable of industrial application
Various types of Patent Applications in India
1. Ordinary application
2. Convention application
3. PCT international application
4. PCT National phase application
5. Application for Patent of addition
6. Divisional Application
Ordinary Application
An application for patent made in the Patent office without claiming any priority of application made in a convention country or without any reference to other application under process in the office is called an ordinary application.
Convention Application (S.135)
When an applicant comes to the patent office with an application claiming a priority date based on a similar application filed in one of the convention country, it is called a convention application (By virtue of Paris convention). To get a convention status an applicant should file the application in Indian patent office within twelve months from the date of first filing of a similar application in the convention country. The priority document (S.138 (1)) and its English translation (if required) (S.138 (2)) also should be submitted by the applicant. A convention application should be accompanied by a complete specification.
PCT International application
PCT is an international filing system for patents in which the applicant gains an international filing date in all the designated countries conferring the late entry (up to 31 months) to the national offices without affecting the priority date. This is a simple and economical procedure for those applicants seeking protection for the inventions in many countries. Indian Patent office is a receiving office for international applications by nationals or residents of India. An international application shall be filed with the appropriate office in triplicate in respect of head office and quadruplicate in respect of branch offices, either in English or in Hindi language .
PCT-National Phase Application
An international application made according to Patent Cooperation Treaty (S.2 (1)(oa)) designating India can enter national phase within 31 months from the international filing date. This application filed before the Controller in the Indian patent office claiming the priority and international filing date is called PCT National Phase application. Applicant can enter national phase with a request made on white paper. But Form 1A is preferred by the Indian Patent office during National Phase Entry. The title, description, drawings, abstract and claims filed with the application shall be taken as the complete specification for the purposes of filing in India . The filing date of the application…shall be the international filing date accorded under the Patent Cooperation Treaty. It is not mandatory for the applicant to submit the documents while entering the national phase for filing the application in the designated or elected member countries, as it is obligatory on the part of WIPO to send those things to the designated offices. However for convenience and faster processing the applicant may submit the necessary documents. Office may ask for any other documents, which are necessary in addition to what was submitted along with the application.
BASIC REQUIREMENTS TO ENTER NATIONAL PHASE IN INDIA
Under the said basic requirements to start the national phase in India, the applicant is required to file the following with the DO/IN (Designated office) or EO/IN (Elected office) within the prescribed time limit:-
- An application on a plain paper (Form1 may be used, however the option remains with the applicant);
- National fee .
As per DO/IN or EO/IN the special requirements of the Office are as follows:
- Name, Nationality and address of the inventor if they have not been furnished in the “Request” part of the international application,
- Instrument of assignment or transfer where the applicant is not the inventor,
- Document evidencing a change of name of the applicant if the change occurred after the international filing date and has not been reflected in a notification International Bureau (Form PCT/IB/306). Form 6 and/or Form 13 is also required.
- Declaration of inventor ship by the applicant,
- Statement regarding filing of corresponding applications in other countries,
- Power of attorney if an agent is appointed,
- Address for service in India (but representation by an agent is not a must)
- Verification of translation, and
- Copy of International application or its translation
The amended specification should be examined in the same way as the original specification. There can be many correspondences between the examiner and the applicant after the issue of FER. However the time for meeting the objections and putting the application in order is 6 months from the date of issue of FER. This time may be extended only once for a further period not exceeding 3 months by the Controller in circumstances beyond the control of the applicant when a request is made for such purpose with specified fee before expiry of the above 6 months period. Application will be deemed abandoned otherwise.
POST DATING OF THE APPLICATION
The application for patent may be post-dated to a date not later than six months from the date of the application on request of the applicant (made at any time before the grant of patent) along with the prescribed fee.
AMENDMENT OF THE APPLICATION AND SPECIFICATION
- 2 Any document for the amendment of which no special provision is made in the act may be amended and any irregularity in procedure may be condoned by the Controller on a petition made by the applicant.GRANT OF PATENTThe Patent may be granted by the Controller at any time, but as soon as possible after the applicant has met with all the official requirements within the period specified in section 21 (6 months from date of F.E.R.or within the extended period not exceeding 3 months ).General Precaution For The applicantIt is a common experience that through ignorance of patent law, inventors act indiscreetly and jeopardize the chance of obtaining patents for their inventions.The most common of these indiscretions is to publish their inventions in newspapers or scientific and technical journals, before applying for patents.Similarly, the use of the invention in public, or the commercial use of the invention in public or even in secrecy, prior to the date of the patent would be a fatal objection to the grant of a patent for such invention thereafter.Another mistake, which is frequently made by inventors, is to wait until their inventions are fully developed for commercial working, before applying for patents.Delay in making application for a patent involves risks, namely,
- that other inventors might forestall the first inventor in applying for the patent, andthat there might be either an inadvertent publication of the invention by the inventor himself, or the publication thereof by others independently of him.