Friday, November 27, 2009

Patent Application in India

A Patent is an exclusive monopoly 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.
Patent represents one of the powerful intellectual property rights. The registration of a patent confers on the patentee the exclusive right to use, manufacture or sell his invention for 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.

Any person claiming to be the true and first inventor of the invention;Any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application;Any legal representative of any deceased person who immediately before his death was entitled to make such application Patent Search;It is prudent to conduct searches as early as possible to avoid spending time and money re-inventing a known matter. A patent is not granted to an invention if it is already available with the public either in the form of published literature or common knowledge.
To be patentable, an invention must, in general, satisfy certain criteria. The invention must be of industrial applicability, must be new and must show an inventive step which could not be deduced by a person reasonably skilled in the field. Above all, its subject matter must be accepted as "patentable" under law. As for example, Inventions which are frivolous or claim anything contrary to well established natural laws are not patentable. There are also other specific categories of inventions which are declared as non-patentable.

The process of patenting typically involves conducting prior art searches to distinguish the invention and develop a description that illustrates the best method of working the invention. The description of the invention is called specification. Depending upon the sufficiency of the description a specification may be either provisional or complete Specification.
A provisional specification is often the first application filed in respect of an invention, and usually contains only a brief description of the invention. It need not contain claims. Compared with the provisional, the complete specification contains the full description of the invention, and the best method of making the invention work. The complete specification comprises a title, field of invention, the background of the invention, the description of the related art, drawbacks of the prior art, the summary of the invention, the brief description of the figures, the detailed description of the preferred embodiments, claims and abstract. Complete specification must be filed within 12 months from the date of filing of the provisional specification.

Claims are the most important component in the patent specification as it is the legal operative part which define and determine the legal protection sought for. The extent of patent protection for an invention shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.

The procedure for the grant of a patent starts with filing of the patent application along with the prescribed fees at the patent office followed by filing of request for examination in the prescribed format, after the publication of the application. The applications are examined substantively and a first examination report stating the objections is communicated to the applicant. Application may be amended in order to meet the objections. If the applicant does not comply with the objection, the application will be abandoned. After complying off the requirements the application is published in the Official Journal. At that time, opposition can be filed on limited grounds, but hearing is not mandatory. Patent will be granted if the application is found to be in order. Then, the application and other related documents will be open for public inspection. Thereafter, at any time after the grant but before the expiry of a period of one year from the date of publication opposition on substantive grounds is available. The whole process typically takes at least two years.

The tenure for patents is 20 years from the date of filing of the application for the patent before the patent office. It is the responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the public domain.

RESTORATIONRestoration of a patent that lapses due to non-payment of renewal fees can be made within one year of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is restored.
Name address of the applicant.
Complete Specification.
Power of Attorney.
Priority documents (if any).
There is no international or world patent. An inventor has to file an application in each country, where he seeks to protect his invention. However, there are regional and/or International treaties to facilitate the procedure to seek protection like Patent co-operation Treaty (PCT) or European Patent Convention (EPC).


Patent Laws differ from Country to Country and they are valid only in one country. For this reason there is no “World Patent” or “International Patents”. However there is an international filing system that is accessible in accordance with patent cooperation treaty (PCT) when an applicant files one of the member states of the PCT, this is legally equivalent to filing it with all PCT member states, which have been designated in the application. Patent right is granted only by the particular member country after entering the national phase in that country.

On 7th December 1998, India acceded to the Paris Conventions for the Protection of Industrial Property and to the Patent Cooperation Treaty as 98th contracting State, consequent of above in any International application for Patent filed on or after 7th December, 1998, India could be designated and subsequently elected. Further national and resident of Indian have also become entitled to file international application for Patent under PCT.


This provision has been incorporated in the patents Act, 1970 as amended by The patent (Amendment) Act, 1999 with effect from 1st January, 1995. Under this amendment to the Patent Act, 1970 it is now possible to make an application for patent claiming for a substance itself intended for use or capable of being used as Medicine or Drug, excepting the intermediate for the preparation of drug. However that India has the privilege, under World Trade Organisation (WTO) regime of a ten years transition period. Thus application for product claims for medicines or drug will not be processed until the end of 2004. But Exclusive Marketing Rights (EMR) can be obtained for that application if certain conditions as stated below are fulfilled:

Where an invention has been made in India or outside India and before filing such a claim in India, application for the same invention claiming identical article or substance in a Convention Country (WTO)has been filed on or after 1st January, 1995 and a patent has been granted on & after the date of making a claim for article or substance in India and approval to sell or distribute has been obtained in the said Convention Country on the basis of the test done on or after 1st January, 1995.

Where an invention has been made in India and before filing such a claim the applicant has made an application for patent on or after 1st January, 1995 for method or process of manufacturing the identical article or substance and patent has been granted in India on or after the date of making of the product claim.

Marketing approval of the article or substance has been obtained from the appropriate authority in India provided that the application for patent has not been rejected by the Controller on the basis of the report of the Examiner that the invention is not an invention (Section-3) or the invention is an invention on which no patent can be granted (Section-4).

There are two situations :-

One, when invention is made in a country other than India, and second, when invention is made in India for which claim for patent for a substance had been made. In case of the first if the applicant has already filed an application for the same in a convention country and the patent or exclusive marketing right have been granted in that country, exclusive marketing rights could be granted in India also.

These rights could be available from the date of approval granted by the controller till a period of 5 years or till the date of grant of patent or the date of rejection of application for grant of patent, whichever is earlier.


EMR will be valid for a period of five years or till the date of grant of the patent or date of rejection of the application for patent whichever is earlier.

Product Patent & Process Patent

The Indian Patent Act, which deals inter alia with patentability of inventions where only methods or processes of manufacture relating to medicines, drugs stands amended. It has now been inserted which provides that a claim for patent of an invention for a substance itself intended for use, or capable of being used, as medicine or drug may be made. The manner how such claim is to be dealt with is provided in the newly inserted Chapter.

The process of manufacture and product of manufacture are to independent subject matters. In a Product patent a new article is produced, while in a process patent no such article is produced, but the process is alternatively process of arriving at the same result which may be cheaper or better. It is enough that the process has a commercial application. If the process is to be used in the commercial activity, it is to be patented. It should be an activity in the field of commercial endeavor having commercial significance on that principal it is essential that a process must be improve

In respect of inventions relating to substances produced by chemical process or substances as food or medicine, no claim for the substance itself is permitted. Only invention relating to method or process for their manufacture is patentable. One of the requirements of petentability of inventory its capability of industrial application. It must, therefore, be capable to take the practical form of an apparatus or device, a product or an industrial process or method of operation. It is the industrial process and not the chemical process which is patentable.

Wednesday, November 25, 2009

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Agarwal: "AGARWAL"