Patent Registration in India

A Patent is a legal monopoly, which is granted for a limited time by a country to the owner of an invention. Merely to have a patent does not grant the owner the rights to use or exploit the patented invention. The right can be affected otherwise by other laws of health and safety regulation or through food and drug regulations. The patent, in the eyes of the law, is a property right and it can be given away, inherited, sold, licensed and can even be abandoned. As it is conferred by the government, the government, in certain cases even after grant or even if it has been, in the meantime, sold or licensed, can revoke it.

• The patent grants the artists to safeguard his creation from getting copied, sold out or imported unless permitted by the artist. That is why patent is called a “negative right”.
• Patents are generally concerned with functional and technical aspects of products and processes and must fulfill specific conditions to be granted.
• The patents are mostly done for increasing the improvements in technology. The technology should flow free and should be graspable.
• Patent rights are territorial; an Indian patent does not give rights outside of India.
• Patent rights last for up to 20 years in India and in most countries outside India.
• By analyzing thoroughly, the platform where you want your patent to be most effective, applying to the right body will do the work. A patent agent can also apply on your behalf.

LEGAL BASIS

The Patents Act 1970, amended by the Patents (Amendment) Act 2005.

The Patents Rules, 2003, as amended by the (Amendment) Rules 2006.

FILING APPLICATION
Any person regardless of the minor age can apply for the patent alone or in a joint. In joint application the person can be assignee, inventor, or a legal representative in ordinary application case. In case of priority application, the applicant in the conventional country or representative or his assignee. A corporate body can’t be an inventor. Foreigners and Indians residing outside India will require an address for service regarding this purpose. They may appoint the representative or a registered agent whose address will be valid for service in India.

Place of Filing: The application for the patent must be filed in the branch office of territorial periphery where the applicant resides. A foreign candidate can file the patent where his address of service is located.

Priority: One can claim the priority from the corresponding application at the earliest in a conventional country, maintaining that the Indian application is filed within twelve months of the priority date. Partial and Multiple priorities are allowed.

Specification: The priority application mandates the filing of completes specifications in the first instance while a non-priority application can be filled with a provisional or complete specification. In case of provisional specification, the application in India has to be filed within 12 months. After the filing of 2 or more provisional specifications, the specification may be cognate and all the subject matter can be cognate into a complete specification for lodging within 12 months of the provisional filed.

Naming of Investor: With regard to non-priority applications, the inventor must be named in the application form. The priority applications, a declaration as to inventor ship must be filed with the application or within a maximum period of six months.

Information of Corresponding in Other Countries: It is necessary to inform the Controller of the details about the corresponding application details at the time of filing a patent application in India. Failure in such cases could result in rejection of the application or even revocation of a patent in proceedings before the High Court.

PATENT EXAMINATION

Examination of Application: Formal and Substantive examinations are conducted by the Indian Patent Office. Examination is held on request.

Procedure: The applicant must comply with all the requirements and objectives of the patent office within the 12-month period from the date of first examination report issued by the Controller. The time limit can’t be exceeded. The application is prone to lapse if the patent application lacks proper order.

Application Amendment: An applicant may, of his own accord, apply to the Controller for amendment of his application or any document filed in respect thereof but such amendments must be filed by way of correction, explanation, or disclaimer. An applicant may also amend his application or specification at the instance of the examiner and file a separate divisional application(s) for the other invention(s) which will grant the date of filing of the complete specification in case of original application and the date is fixed by the Controller. It is mandatory to file divisional application prior to granting of the parent application.

PATENT PUBLICATION
Publication takes place after the maximum period of 18 months from the date of application. After the fee payment one can request for the publication on urgent basis. On and from the date of application for publication for patent and until the grant of patent, the applicant will be privileged of the rights for the invention and granted on the date of application is publicized.

Pre-Grant Opposition of Patent Application: After publication and before the grant date by through representation way, anyone may file opposition to the grant of a patent.

Publication of Subject matter: The application’s grant is published in the official journal and is notified at the same time for the post grant opposition. A patent can be cancelled officially within a year after the grant by post grant opposition proceedings before the Controller of Patents.

Revocation of the Patent: It is possible on the prior publication grounds anywhere in the world, public knowledge in India, obviousness, ambiguity, fraud, false suggestion, or an air of conceal personality of the inventor, non- patentability of the subject matter like (food, atomic energy, method of agriculture, medical treatment process). Falsity in material particulars of information regarding corresponding applications in other corresponding countries supplied to the Controller or the invention Is contrary to morality or law.

Annuities: Taking as an exception the added patent case, ceasing any payable annuities, the annual renewal fees must be paid during the tenure of Indian Patent. The renewal of the due fees during the pendency of the application can be pain within a non-extendible period of 3 months from the date the patent is been recorded in the Register of Patents. If a patentee desires, he can pay the 2-3 months renewal fee in advance. A maximum extension of six months can be obtained on payment of the prescribed penalty fees. If the renewal fee is not paid within the extended period duration, it will result in lapsing of the patent.

Restoration: For the restoration of the lapsed patent, one is required to file an application for restoration within a year of lapse patent. It will act as an assurance for unintentionally lapsing down of the patent and that the application for restoration has been made timely.

Working of Patents: Every patentee is required to furnish within 3 months from the end of year the patent was granted, a statement highlighting the extent to which the invention has been worked upon in India in the preceding year. Non-filing of this statement might be taken as a criminal offence.

Compulsory License: After 3 years from the date of patent sealing, the interested person may apply to the controller for gaining the compulsory license by alleging that the public requirements respective of the invention have not been satisfied or that the invention is quite costly. If the Controller is satisfied that a prima facie case for an applicant for compulsory license has been made out, he is free to serve notice on patentees who, if they desire may oppose the application for obtaining compulsory license.

Marking: It is advisable as in case of infringement as a protection from the damages which is difficult to recover otherwise. The invention can be marked as “Patented” or “Patent” followed by the year and the number of the patent.

Infringement: An infringement can be instituted by an exclusive license by the patentee or the patentee himself. The revocation proceedings are available for defense and that the revocation can be counter claimed in the proceedings of infringement. The court proceedings may fall in the favor of the patentee if he posses the valid claims. The institution of an infringement suit and safeguards from the damages in case of groundless threats. For non-infringement of a patent any person can institute a suit for declaration. It is the defendant which carries the proper proof of non-infringement.

PATENTS AND COMPUTER SOFTWARE
It is possible to patent programs for computers which, when run on a computer produce a “technical effect or includes hardware”. If the program fails to present a technical effect when operated it is unlikely to be patentable. For obtaining the patent the there should be an innovation in the technology area. A program which improves the functioning at any professional platform owns the right of being patented. Countries like USA have a broad approach towards software and grants patent for software which is excluded in India and other countries. It’s quiet a complicated issue to decide whether a particular program is patentable or not, in such cases seeking advice from the patent Agent is the best solution for determining effective form of protection.

PATENT REGISTRATION REQUIREMENTS
Requirements for filing patent application in India:

• Agent Authorization
• Specifications in English
• Sets of Drawing
• For claiming the priority document, a certified copy of specification is filed originally which must be accompanied by certified English translation.
• Full name, address, nationality and occupation of the applicant in the conventional country, should be given.
• Details of corresponding applications in other countries
• Proof is required for applicant’s right for the crafting of the application within 3 months of filing of patent.
• Declaration underling complete specifications or the claiming of the priority can be filed within three months of filing of application
• Application Form 1 duly completed and signed in addition to the full name of the inventor or the applicant
• The designation and name of the person signing on behalf of the applicant
• Nationalities and Addresses of the inventors and applicants along with the applicants in the conventional country and basic application’s date of filing.