1) Patentable invention
All invention that have commercial application can be covered by patent-“ Invention means a new product or process involving an inventive step and capable of industrial application.” Further “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.”
2) Unpatentable invention
The following are not inventions within the meaning of the Act,-
a. an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
b. an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human , animal or plant life or health or to the environment;
c. the mere discovery of a scientific principle or the formulation of an abstract theory (or discovery of any living thing or non-living substances occurring in nature)
- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Examination:- For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
- a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- a method of agriculture or horticulture;
- any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
- Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- A mathematical or business method or a computer programe per se or algorithms
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- A mere scheme or rule or method or performing mental act or method of playing game;
- A presentation of information;
- Topography of integrated circuits;
- An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
. Inventions relating to atomic energy not patentable.- No patent shall be granted in respect of an invention relating to atomic energy falling within subsection(1) of section 20 of the Atomic Energy Act, 1962(33 of 1962).
3) Requirements for patentability
1. Novelty 2. Inventive step 3. Industrial applicability. Inventive step - means a feature of an invention that involves technical advances as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art
4) How can novelty be lost?
Novelty is lost by (a) prior publication (b) prior public use and (c) prior claiming (based on an earlier specification). Based on section 31 and 32 option is provided so that if the disclosure is before a scientific body or an exhibition notified by the union government, then, within twelve months from such publication or display, a patent application can be made.
A non-commercial experimental use will not peril novelty
5)Paris convention and P.C.T.
Yes, India is a signatory to PCT and Paris Convention
6) Application procedure
To be made in Form I (duplicate) and shall be accompanied by prescribed fee (Rs.1000/- for individual and Rs.4000/- for other legal entitles), form 2 (provisional or complete specification) and form 3 (a declaration and undertaking regarding the foreign patent filing of the same invention if any).
7) complete and provisional specification
Provisional specification is made to obtain earliest priority date. When the invention is in the rudimentary stage, and a lot of other details to follow, then it is better to lodge a provisional specification.
When the invention is fully ripe and every thing about the same is known and the invention can be put into use in the market with the immediate effect, then it is better to go with complete specification.
If a complete specification is not lodged within 12 months of lodging the provisional specification, the patent application will be deemed to have been abandoned.
8) examination of patent specification
The specification would be read by the examiner in patent office who would be a person skilled in the art or in the field of invention
9) Contents of specification
- Title of the invention
- Area of the invention
- Background of invention
- Summary of the invention
- Explanation about the drawings
- Detailed description of the invention
- Claims
- Abstract
10) Publication
The application gets published after 18 months from the date of filing of application or the date of priority of the application whichever is earlier. The applicant has to specifically request for examination after the publication of the specification in the patent office gazette, by paying prescribed fee. If the examination is not requested within 48 months of the priority date, the application will be abandoned.
11) Expedition of examination
Request for expedited publication can be made in Form 9 by paying the prescribed fee Rs.2,500/- for individuals and Rs.10,000/- for companies.
Request for examination has to be made in form 18 with fee of Rs.2, 500/- for individuals and Rs.10, 000/- for companies.
The express request of examination for national phase application is possible an further payment of fee of Rs.1,000/- for individuals and Rs.4,000/- for companies.
12) Amendment of patent specification
Amendment in patent specification can be made at the instance of the patent office to comply with the requirements of the examination report. It is also open for the party to file Form 13 on payment of prescribed fee. The amendment so effected cannot be in such a way as to increase the scope of the claims or for putting up additional claim.
13) Term of patent in India
Patent is valid for 20 years from the date of filing of the application. In case of application under P.C.T. designating India, the term of patent is 20 years from the international filing date.
14) Joint work
In case of joint inventors patent can be issued to them jointly on the basis of a proper patent application.
15) Compulsory licensing
Based on the patent Act 1970, compulsory licensing is permissible. Any person interested may make an application for grant of compulsory licensing after 3 years from the date of the grant of the patent.
