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Frequently Asked Questions

What is Patent?

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of her/his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those x`purposes without her/his consent.

What is the term of a patent?

A patent protection is granted for a period of 20 years from the date of filing the application for the patent. After the expiry of twenty years, the patent falls into public domain.

 Is a patent valid in all countries?

Patents are territorial rights. The exclusive rights are only applicable in the country or region in which a patent has been filed and granted.

 What can be patented?

An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act.

When should an application for a patent be filed?

An application for a patent can be filed at the earliest possible date and should not be delayed. An application filed
with provisional specification, disclosing the essence of the nature of the invention helps to register the priority of the invention. Delay in filing an application may entail some risks such as (i) some other inventor might file a patent application on the said invention and (ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her.


 

What is Patent specification?

A patent specification sets the boundary for the protection sought by an invention Drafting a patent specification requires utmost care and caution. It defines the legal limits of protection that an invention is entitled to.

Can any invention be patented after publication or display
in the public exhibition?

Generally, an invention which has been either published or publicly displayed cannot be patented as such publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organised by the Government or disclosure before any learned society or published by applicant.

Who can apply for a patent?

A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

How can I apply for a patent?

A patent application can be filed with Indian Patent Office either with provisional specification or with complete specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the provisional application. There is no further extension of time to file complete specification after expiry of said period.

What is Provisional application?

Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a priority date of the invention. Further, the inventor gets 12 months’ time to fully develop the invention and ascertain its market potential and to file the complete specification.

What is complete application?

It is the final specification that sets the boundary for the protection claimed by the invention. It must contain the formal claims and must be drafted with utmost care.

What is ordinary application?

An application for patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. Such type of application is known an ordinary application.

What is a convention application?

An application for patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries, is called a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.

What is patent of addition?

When an applicant feels that he has come across an invention which is a slight modification of the invention for which he has already applied for or has obtained patent, the applicant can go for patent of addition if the invention does not involve a substantial inventive step. There is no need to pay separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.

What is divisional application?

When an application made by applicant claims more than one invention, the applicant on his own or to meet the official objection may divide the application and file two or more applications, as applicable for each of the inventions. This type of application, divided out of the parent one, is called a Divisional Application.

What is PCT International application?

An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty is an international application which can be filed in more than 150 countries by a single application.

What is PCT national phase application?

When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.

What happens if I don’t file patent application?

If you don’t patent your invention, competitors may well take advantage of it. Competitor will be tempted to make the same product by using your invention without needing to ask for your permission. Larger enterprises may take advantage of economies of scale to produce the product more cheaply and compete at a more favorable market price. This may considerably reduce your company’s market share for that product. Even small competing enterprises may be able to produce the same product, and often sell it at a lower price as they would not have R&D cost. The possibilities to license, sell or transfer technology will be severely hindered if you don’t patent your invention. Moreover, without intellectual property (patent) rights, transfers of technology would be difficult. The transfer of technology assumes that one or more parties have legal ownership of a technology and this can only be effectively obtained through appropriate intellectual property (IP) protection.

Can I obtain a patent and keep the invention secret?

No. Patents are granted by patent offices in exchange for a full disclosure of the invention. In general, the details of the invention are then published and made available to the public at large. Patent applications are generally published 18 months from the filing date.

How is an application processed under PCT?

When an application is filed under the PCT there are two phases; the international phase and the national phase. The international phase does not result in the grant of a patent. It only completes the initial formality with regard to the application. The international phase is followed by the national phase in which the applicant must file national applications in each country that he chooses to enter within 30-31 months from the date of international filing or the priority date, whichever is earlier.

Is it mandatory to obtain prior permission from the Patent
Office to file application for patent outside India or abroad?

Ordinarily, under the following circumstances, it is not necessary to obtain prior permission from the Patent Office to file patent application abroad: (a) Applicant is not Indian resident and invention is originated abroad about. (b) If the applicant is Indian resident and filed patent application has been in India before filing the application outside India and six weeks period is over from that date. (c) The invention does not belong to Atomic Energy or defence purpose.

What is patent infringement?

When a third-party uses a patent without the permission/authorization of the patentee or violates the exclusive rights conferred on the patentee it amounts to patent infringement