Intellectual property refers to the creative aspects of the mind such as inventions, literary and artworks, designs, symbols, images, etc., that are protected by law. There are different methods in which one can protect intellectual property. Patents, copyrights, trademarks, etc. are examples of intellectual property protection methods.
A patent is a license or permits authorized by the government conferring a legal right for a period of time. The main right is the sole ownership of the product and excluding others from making, using, selling or importing the patented product without the consent of the owner.
A patent is usually granted to an inventor to protect its invention. An invention implies a new product or process involving creativity and applied to or capable of industrial application.
A patent is granted to an invention if it meets the following criteria:
- Novelty: The invention has to be new and cannot be a part of the prior state of work, implying that it must not have been published, presented, or revealed publicly.
- Inventiveness: This is a feature of the invention that involves the advancement of the existing knowledge or state or work that is strikingly evident to any person.
- Utility: An invention must be applied to or applicable in the industrial process.
Therefore, an invention that can be manufactured, used, and reproduced is granted patentability.
There are three types of patents:
- Utility patents: It is granted to anyone who invents or discovers any new and useful process, the machine, article of manufacture, or composition of matter or any new and useful improvement thereof
- Design patents: It is granted to anyone who invents a new, original, and ornamental design for an article of manufacture
- Plant patents: It is granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant
Reasons to obtain Patent Registration
Patent registration is required for many reasons.
- It gives legal rights over the product or process invented
- It reduces the tax rate on patented products
- Patenting a product gives the inventor an intangible asset and related rights and actions that come with it
- It gives the inventor an edge over its competitors
Process of Patent Registration
- A patent search is the most important step. All inventions are not patentable. Check if the patent meets all the criteria of patentability and whether it can be a patent or not.
- File a patent application form either by self or with the help of a professional if the invention can be patented.
- File the supporting documents with complete details of the invention such as:
- Area and nature of the invention
- Invention description
- Working of the invention
- Advantages
- Drawings, plans, diagrams, sketches, etc. of the invention
- After filing for a patent with complete specifications, the application is published after 18 months of first filing. An early request for publication can be made with prescribed fees to make the publication of application as early as one month from the date of filing for early publication.
- An examination of the application is carried out after a request for examination is filed.
- The examiner checks for the patent eligibility and if the criteria are met such as novelty, inventiveness, utility, etc.
- The examiner creates a report called patent prosecution and submits to the controller. Everything that happens before the grant of patent is called patent prosecution.
- The controller checks the report for any objections and gives the applicant extended time to analyze and correct the objections.
- The applicant has the chance to prove his novelty and create a strong satisfactory report to resolve the objections.
- Once the objections are resolved, the patent is granted to the applicant and published in the patent journal.
Why filing a Patent in India? – Benefits
Granting of a patent is a form of encouragement for innovations and inventions, and once a patent applicant files for it he or she becomes the exclusive owner of the invention if the patent is granted.
Filing a patent in India is important as it restricts the contenders from copying, selling or importing the inventors’ creation without their permission, and it is valid for a period of 20 years from the date of application of the patent.
A patent, like any other intellectual property, can be transferred or sold by the inventor.
ADVANTAGES OF OWNING A PATENT
A patented product is likely to improve brand perception and potentially enable your business to charge a premium.
Additionally,
- Patents can increase your business revenues while slowing down rivals for years to come.
- With exclusive rights, the owner of the patent controls the use of the invention for a full twenty years.
- Patents can be sold and licensed like other forms of property
How to get a Patent in India? – A detailed patent filing process
Patents can be secured by following the below-mentioned steps:
The procedure for the grant of the patent begins with the
Step 1: Filing a patent application:
- Ideation: Here, you need to clearly pen down the idea or concept, clearly mentioning the key details about the invention and the desired patent.
- Visualisation: Visualise your idea and elements like diagrams that explain more about the invention.
- Verification: Verify whether your invention is patentable as defined in the Indian Patent Act. Some inventions may not be patentable, and it is necessary they meet the patentability requirements such as:
– Novelty
– Non-obviousness
– Usefulness
– Patentable subject matter
Drafting a patent application is an art in itself. Seeking the help of a patent professional will be a wise choice here. If you are in the initial stages of research and development process, then it is best to file an optional preliminary application called provisional patent application.
Step 2: Preparation of patentability report: Authorized patent professionals or patent agents will then do an extensive research and prepare the patentability report, which includes analyses based on the above-mentioned criteria.
WHY PROVISIONAL PATENT APPLICATION IS A GOOD IDEA BEFORE FILING THE PATENT APPLICATION
A provisional patent application secures your date and work. This means that none of your competitors can file for a similar invention once an provisional patent application is filed.
- As India follows the first-to-file system, this ensures that the holder of the provisional patent would also be granted the permanent patent
- There is a buffer time of 12 months to further develop your invention and to specify the its complete details. The application gets abandoned upon expiry of 12 months of the application
- The cost and resource involved for provisional patent application are less when compared to the permanent patent
- The provisional specification helps you assess the market potential of your invention before taking the final plunge and filing a complete specification.
- Once you are ready with your R&D and your invention’s detailed specifications, you can go in for a complete patent application.
Step 3: Publication of patent application: The application is then published after 18 months. A request to early filing of application can be made along with a prescribed fee.
PLEASE NOTE:
- Patent Examination: Would be a formal submission of request for patent examination that must be filed within 48 months from first filing the patent (provisional patent or complete patent). If failed to file within the time frame, per the Patent Act the application will be treated as withdrawn by the patent office. The examiner then conducts a comprehensive investigation and releases the first examination report called patent prosecution.
- Patent objections: It is common that patent applicants receive objections, like “inconsistent or unclear claims”, “invention lacking novelty”, etc. Hence, it is mandatory to analyze the patent examination report and draft a proper response to the objections.
Grant of patent: Once all the patentability requirements are met, the patent grant notification will be published in the Patent Journal.
4. How to make money from Patenting your invention?
Any patent holder looks for ways to monetize the patents and wants to enjoy the fruits of his hard work and research. The two ways to earn from it are:
LICENSING A PATENT:
A patent owner can license his idea to another and give rights to the licensee to sell or make the patented invention. The patent holder can control these rights. A license agreement must include upfront payment and royalty percentage. Royalty is the percentage of the revenue earned from the licensed product over a period of time.
SELLING OF PATENT:
A patent can be sold to anyone within the country where the invention is patented. By selling patents, inventors can usually demand a lump-sum payment and is best in the long run. He can be free from maintenance fees for the patent office, litigation fees and most importantly free from worrying about future economic recession.
5. Publication of Filed Patent
The Indian patent office keeps every patent application confidential until it gets officially published in the Patent Journal.
The publication of filed patent happens automatically after 18 months from filing the applications, and there is no need of any request to be raised.
To get the patent published in advance, the applicant has to initiate a formal request and it will get published within 1 month of the request.
The publication date does matter the most as the inventor is entitled to protect his work legally post publication.
6. Licensed Patent agent in India
A licensed patent agent in India is an individual registered for practicing before the Indian Patent Office. Patent agents will help in filling out the necessary forms, contacting the patent office, prosecuting patent applications, and in following up with any issues that arise during the filing of patent. To become a patent agent, the individual should be a citizen of India above 21 years of age and must have cleared the patent agent examination.
A patent examiner is the person who sends the list of rejections and at times when there arises the need to modify the patent application, patent agent can intervene and address the issue or argue against the rejection.
PATENT ATTORNEY
Often the terms “patent lawyer” or “patent agent” are interchangeable but still there are some differences between both at some instances. Patent lawyers are legally qualified to provide advice on intellectual property, infringement and represent others in a court of law. They are also registered with the bar council whereas a patent agent generally holds a degree in engineering, science, and technology.
7. Common types of patent applications in India
The most common types of patent applications in India are
1.Ordinary application: An ordinary application is filed without claiming priority from any application or any reference to any other application under process in the Indian patent office. It is important to note that the filing date and the priority date are the same. An ordinary application is filed along with a complete specification and claims.
2.Conventional application: When a patent application has already been filed in other country and when the patent is filed for the same invention in India, then this type of application is called conventional application. It is mandatory for the applicant to file the application in Indian patent office within 12 months from first filing it.
3.PCT National phase application: A PCT National Phase application can be filed within 31 months from the international filing date.
4.PCT International application: If you want to claim your priority in multiple countries, then filing a PCT application is important and it allows up to 142 countries. The time period is between 30-31 months from the international filing date to enter and claim protection in each country.
