The Patent Act, 1970 as Amended by The Patent (Amendment) Act 2005.

A patent is an exclusive right granted to an inventor over his invention for a limited period of time. It provides an enforceable legal right to prevent others from exploiting an invention. Invention means a newly invented product or process involving an inventive step and capable of industrial application. A patent can be granted to the true and first inventor of an invention or his assignee or the legal representative. The registration of a patent confers on the patentee the exclusive right to use, manufacture or sell his invention during the term of the patent. It means that the invention cannot be commercially made used, distributed or sold without the patentee's consent. The patent rights can usually be enforced in a court of law.

Patent Office

Controller General of Patents, Designs, and Trademarks is the Controller of Patents. Central Government appoints the Patent Examiners to carryout the patent searches. The Controller of Patents has certain powers of the civil court, such as summoning any person to appear or produce any document, examine him under oath, receive evidence on affidavit, examination of witness, issue commissions, awarding of costs, setting aside the ex-parte orders, reviewing of the orders issued by him and other works prescribed in the Act.

Patentable Inventions

Non-Patentable Inventions

An application for a patent in the prescribed format along with a provisional specification containing the brief description of the invention has to be filed as early as possible to obtain a priority over the invention.

A complete specification has to be filed within 12 months from the date of original application. However, this period of 12 months can be extended by 2 months by making an application seeking an extension of time.

Contents of Specification

Once the complete specification is filed, the applicant has to make a request for examination of patent in the prescribed format. Request for examination in the prescribed format is to be filed after the publication of the application (present time limit is within 36 months). Application for patent is not open to public for 18 months from the date of filing or date of priority.

Patent Examiner will carry out a search for the novelty and prior art regarding the invention and a first examination report stating the objections will be communicated to the applicant. Application may be amended in order to meet the objections. All the objections must be met within 12 months from the date of first examination report.

After the Patent Office has examined an application and found that the patent can be granted, it publishes the title of the invention, name the applicant, abstract of the invention, drawings and claims in the Gazette and waits for objections . The interested parties has to oppose the grant of the patent within four months publication in the Gazette. An extension of one month is possible, provided a request for such extension has to be filed within the first four months.

Duration of a Patent

The term of patents is 20 years from the date of filing of the application for the patent. It is the responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After the 20 year term, the invention claimed in the patent falls into the public domain. The patent that has lapsed due to non-payment of renewal fees can be restored within one year of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is restored.

Infringement

Patentee has to see that his patent is not being infringed. If any act of infringement is found, the patentee can file a suit of infringement against the infringer. The patentee can seek the relief of Injunctions (whether interim or final) with damages or account of profits.

International Patent Protection

An inventor can file a patent application in each country, where he intents to protect his invention. The regional and international treaties facilitate the procedure to seek protection in member countries, like Patent Co-operation Treaty (PCT) or European Patent Convention (EPC).

Convention Application / Patent Co-operation Treaty (PCT) Application

India is a member to the PCT and provides provisions in Patent Act for PCT patent application filing in other member countries. Any inventor intending to file patent application in any of the member countries of PCT has to file an application within 12 months of his basic application in India. Priority date of such application will be the priority date of the national application.

Last updated on: 27-12-2007