Patent Application in India

WHAT IS A PATENT
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.
RIGHTS CONFERRED BY REGISTRATION
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.

WHO CAN APPLY
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.
PATENTABLE INVENTIONS
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.

PATENT SPECIFICATION
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.
PROVISIONAL AND 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.

FILING AND PROSECUTING PATENT APPLICATIONS
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.

DURATION OF A PATENT
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.
LIST OF INFORMATION REQUIRED FOR PATENT REGISTRATION
Name address of the applicant.
Complete Specification.
Drawing.
Request.
Abstract.
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 COOPERATION TREATY (PCT)

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.

EXCLUSIVE MARKEING RIGHTS

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.

Duration

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.
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FM’s speech at meeting of Empowered Committee of State Finance Ministers on GST

Following is the text of speech delivered by Finance Minister Shri Pranab Mukherjee at the meeting of the Empowered Committee of State Finance Minister here today:

“Dr. Asim Dasgupta, Chairman, Empowered Committee, Shri Sushil Modi, Deputy Chief Minister of Bihar, State Finance Ministers and friends!

It gives me great pleasure to be here on this occasion when the Empowered Committee under the dynamic leadership of Dr. Asim Das gupta is releasing its First Discussion Paper on the proposed Goods and Services Tax (GST). At the outset, let me whole-heartedly congratulate all of you for giving shape and form to an idea whose time, I believe, has truly come.

We have indeed traveled a long way from the time the announcement was first made in 2006 by the then UPA Government to launch a comprehensive GST in the country by the 1st of April, 2010. At that stage, many of you were preoccupied with the challenge of switching over to the Value Added Tax (VAT) while others were settling down with that tax. The introduction of GST then would have looked like a distant event. But now all of you are richer by the first-hand experience of the benefits that the shift to VAT has brought both to your Governments and the business community leading to improvement in the economies of your States. That may be the reason why I have felt a sense of excitement and enthusiasm in the pace and spirit with which the Empowered Committee has worked over the last couple of months to carve out the design and structure of GST. I commend all of you and your teams for working tirelessly to put together the First Discussion Paper which reflects your collective wisdom on the subject.

At this stage, it is important to recall the benefits that this long-awaited reform in our indirect taxation promises to all of us. Our current structure of indirect taxes is driven by a multiplicity of taxes- some levied by the Centre and others by the States. Each of these taxes applies to a narrow base both in terms of the economic activity it covers e.g. manufacture, sale, entry, entertainment etc. and the range of goods and services it applies to. While the base for many of these taxes overlaps, each is an island in terms of flow of input credit. The output tax is allowed to be adjusted against tax already paid on inputs only in a few cases. Then, there is a variety of exemptions meant to serve multiple socio-economic objectives. As a consequence, high rates of tax are required to be imposed to generate a given amount of revenue.

As tax collectors, we may draw comfort from the fact that we manage to generate the targeted revenues. But there are questions that beg an urgent response. First, are collections made in the most efficient manner and do they match the potential? Second, what is the hidden burden of taxes in the form of cascading and double taxation? Third, why is our tax structure so complex and prone to disputes and litigation? These questions cannot be side-stepped any longer as they have implications for the robustness and growth of the very base that yields our tax revenues.

The merits of GST are well-known. It will re-distribute the burden of taxation equitably between manufacturing and services bringing about a qualitative change in the tax system. With the minimization of exemptions, it will broaden the tax base and lower the tax rates. By switching to the destination principle, the distortions will be reduced fostering a common market across the country. The compliance cost will come down and our trade and industry will become more competitive leading to an increase in exports and lower prices for domestic consumers.

The proposed Goods and Services Tax (GST) can deliver on all these promises only if it has the following essential features:

(i) It is comprehensive in scope and applies to as large a range of goods and services as possible by minimizing the number of exemptions to a small list of essential items which impact the common man. To the extent possible, the exemption lists of the States and the Central Government are in alignment;

(ii) The rates of tax of CGST and SGST taken together are moderate;

(iii) The rates of tax of SGST and exemptions from SGST are uniform throughout the country so that a given set of goods and services invites the same tax treatment in every State;

(iv) The input credit chain is seamless covering the entire value chain from manufacturing to retail without breaks regardless of whether goods or services are supplied within a State or across State boundaries;

(v) As far as possible, every transaction in the tax net bears both CGST and SGST;
(vi) The tax treatment of goods and services is similar;
(vii) The Central and State levies are fully neutralized in the case of exports (out of India); and

(viii) The procedures are simple and harmonized between the Centre and the States.

I am confident that the model proposed in the First Discussion Paper prepared by the Empowered Committee has taken all these concerns onboard. Detailed discussions with all stake-holders which will begin with the release of the documents today will help us to refine the design and concepts further.

I notice that significant progress has been made in developing a consensus on various issues. Now we must ensure that settled issues are not re-opened and we move forward at a fast pace. Once we decide on the rate structure and agree on the list of exemptions there should be no deviation in the pursuit of short-term interests. All of us will have to keep the long-term interests of the economy in view by taking carefully thought-out decisions in consultation with each other before making any deviations. This spirit of co-operative federalism is the essence of GST and the only feature that would ensure that a national market with free movement of goods and services across State boundaries develops, in the true sense. There is a view that insistence on strict adherence to mutually-agreed rates would impact the fiscal autonomy of States. To begin with, the canvas of fiscal policy is much wider than taxation and goals of public policy are as effectively met through the expenditure side of the budget. Even within the realm of taxation, the belief that the only degree of freedom available to us for enhancing revenues is by changing the rates of tax is a somewhat limited view. There is enormous scope for augmenting revenue collections by improving our tax collection machinery and the delivery of taxpayer services. There is ample evidence to show that lower taxes lead to better compliance and higher revenues. GST gives us an opportunity to bring together the machinery of the Centre and the States to jointly work for better enforcement.

To improve the quality of our taxpayer services, we have to focus more closely on the benefits of working collaboratively with the taxpayer community to improve our outreach and assist them in the due discharge of their tax liability. This is an area where the policy options are many and the freedom to make a difference immense.

Amongst the administrative actions that are critical for the success of GST is the creation of a strong Information Technology Infrastructure both for the Centre and the States. Many of the issues I have mentioned earlier are easily amenable to IT-based solutions. Besides, such an infrastructure is required for reducing the physical interface between the taxpayer and the department so that compliance costs are curtailed. Some other measures for improving internal efficiency within tax departments include quick & timely exchange of data between the Centre and the States for risk-profiling, audit etc.

With these words, I once again commend all of you for the hard work you have put in and hope that the Discussion Paper generates a robust and informed public debate across the length and breadth of the country so that the ownership of GST is a given as and when it is introduced. On our part, I assure you that the recommendations and suggestions made in the Discussion Paper would receive our in-depth and meticulous attention so that we are able to jointly finalize the structure and design of GST at the earliest.”

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Patent Application Process in India - Agarwal & Co. - Solicitors & Advocates

WHAT IS A PATENT
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.
RIGHTS CONFERRED BY REGISTRATION
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.

WHO CAN APPLY
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.
PATENTABLE INVENTIONS
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.

PATENT SPECIFICATION
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.
PROVISIONAL AND 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.

FILING AND PROSECUTING PATENT APPLICATIONS
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.

DURATION OF A PATENT
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.
LIST OF INFORMATION REQUIRED FOR PATENT REGISTRATION
Name address of the applicant.
Complete Specification.
Drawing.
Request.
Abstract.
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 COOPERATION TREATY (PCT)

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.

EXCLUSIVE MARKEING RIGHTS

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.

Duration

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.

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