WHAT IS A PATENT?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. The present Indian position in respect of patent law is governed by the provisions of the Patents Act, 1970. To get a patent, technical information about the invention must be disclosed to the public in a patent application. Patents can be applied for biological inventions such as designs, accessories, computer software, and cosmetic products, as well as commercial methods such as chemical formulas, compounds, processes, decorative items, nanochip technology, containers, and computer hardware. Patent Registration Office of India is headquartered in Kolkata and has branch offices in New Delhi, Mumbai, and Chennai.

CLEARANCE

Clearance or patent searches are primarily undertaken to ascertain the existence of potential patent barriers to the commercialization of any new product or technology. It is critical to conduct a preliminary search for patents in order to prevent violating any active patent. A significant amount of money is invested in the research and development of new products and technologies. People make rash decisions to claim patent protection for their inventions without completing any research or submitting for Patent Application or Registration in Delhi. At a later stage, this move creates impediments and costs the business endeavor time and money. There is a possibility that an already existing patent will invalidate the patent on such a product. As a result, it is critical to undertake a detailed search with the assistance of knowledgeable patent professionals. To simplify the process, skilled personnel undertake exhaustive patent searches, followed by the recommendation to file a patent application.

PATENT SEARCHES

  • Freedom to Operate search: This exhaustive search and study of the patent literature is undertaken to ascertain the existence of active patents or patents whose term is about to expire. This is to avoid infringing on or breaching the rights of other patent holders.
  • Search for Novelty and Patentability: Conducting a novelty search assists in determining if an invention is patentable. Such searches are conducted using invention-related keywords.
  • Prior Art/State of the Art Search for Patents: An innovation that is discovered in prior art cannot be considered novel, and hence cannot be copyrighted. It detects existing gaps or grey areas in existing technology and proposes fixes, so drawing a clear line between prior art and claimed invention.
  • Validity/Invalidity Search: Occasionally, examiners will bypass a prior art search that is necessary to declare a patent invalid. Such a search is conducted to ascertain whether any prior arts have been overlooked and so render a patent invalid.

PATENT REGISTRATION IN INDIA

A patent application may be submitted in India in the following manner:

  • Ordinary Patent Application
  • Provisional or Complete Patent Application
  • Convention Patent Application
  • PCT National Phase Patent Application
  • Application for Patent of Addition

PROCEDURE

A patent application must be filed with the appropriate Patent office along with a provisional or complete specification, drawings, and abstract of the invention, as well as information and an undertaking listing the number, filing date, and current status of each foreign patent application, priority document (if any). The registration procedure entails:

  • filing of a patent application
  • electronic data processing
  • categorization and publishing of the application
  • examination of the application by a patent examiner
  • pre- or post-grant opposition that is either accepted or refused by the Controller of Patents.

Additionally, a web-based filing tool is available to assist applicants in submitting their applications on time. After submitting the relevant data and paying the required costs, an acknowledgment slip is generated for future reference. When an application is filed with a provisional specification, the complete specification must be filed within twelve months of the date of the provisional application’s filing. Following that, the applicant may request publication prior to or after 18 months from the priority date. In the Official Journal, the application is published. Any individual may file an objection to the grant of a patent in the competent office at any time following the publication of the patent application but prior to the award of the patent.

After the application is thoroughly evaluated, a request for examination or expedited examination is filed, and a first examination report is provided to the applicant noting any objections or further needs. The applicant must answer within approximately six months, with a three-month extension from the date of the initial examination report. If all objections are overcome, the Controller shall grant the patent. Each patent is assigned a serial number by the electronic system upon grant. A Certificate of Patent in the prescribed format is generated concurrently with an entry in the e-register. The date of registration of a Patent in the Register of Patents is the same as the date of award of the Patent by the Controller under the current computerized system.

The fact that a patent has been awarded is published in the Patent Office’s official journal. Any person interested may file a post-grant opposition within twelve months of the grant’s publication date. Such matters are decided by the Opposition Board, and the Controller makes the final judgment. The Controller of Patents’ decisions is appealable to the Intellectual Property Appellate Board.

DURATION

In India, patents are valid for twenty years from the date of filing the patent application, regardless of whether the specification is provisional or complete, after which the patent becomes public domain.

A patent registered in a given country provides protection only in that country. However, India joined the Patent Cooperation Treaty (PCT) in 1998, which allows for patent protection in all signing states, saving applicants time and effort when pursuing protection in many countries. Additionally, it has ratified the World Intellectual Property Organization’s Paris Convention for the Protection of Industrial Property, 1883.

INFRINGEMENT

As per the provisions mentioned in the Indian Patents Act, 1970; the following amount as an act of Patent Infringement:

  • The colorable imitation of the invention
  • Mechanical Equivalents
  • Carrying essential features of the invention
  • Immaterial variation in the invention

Indian Patents Act, 1970 also considers falsification of entries in the register, claiming patent rights in an unauthorized way, etc. to be punishable criminal offences.

LIMITATION:

The limitation period for instituting a suit for the patent infringement is 3 years from the date of infringement and jurisdiction is the geographic area where the infringement has taken place. Also, the burden of proof to establish that an infringement has occurred lies on the patentee.

CIVIL REMEDIES

A suit for infringement of the patent  can be filed with the District Court or High Court in India which provide for the following redressal:

  • Temporary Injunction/ Interlocutory Injunction
  • Permanent Injunction
  • Seizure, forfeiture or destruction of infringed goods or materials.
  • Damages

HOW CAN A CORPORATE LAWYER HELP YOU?

Expert Intellectual Property Lawyers handle complex matters relating to patient infringement and for damages in case of continuous breach and wrongful gains. Our renowned corporate lawyers at The Law Codes can guide you and advise you on taking the right legal recourse in matters related to intellectual property.

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