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IP SERVICES: FAQ on Patent

Frequently asked questions about Patents

What is a Patent?

A patent is an exclusive right granted for an invention but NOT discovery, which should be a product or a process that provides or offers a new technical solution to a problem. A patent provides protection for the invention to the owner of the patent. The protection is granted for 20 years in India.

What kinds of Inventions can be Patented?

Referring to the relevant section:
Sec. 2
(j) “invention” means a new product or process involving an inventive step and capable of industrial application;
(ja) “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;
(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art;

Therefore, an invention must, in general, fulfill the following conditions to be protected by a patent. It must be of practical use; it must show an element of novelty, that is, some new characteristics which are not known in the body of existing knowledge in its technical field. This body of existing knowledge is called “PRIOR ART”. The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field i.e. the claimed invention must NOT be OBVIOUS or FRIVOLOUS. Finally, its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.

Are there inventions which are not patentable?

Sec. 3 & 4 of Patents Act, 1970 mentions the following inventions as not patentable:
1. Frivolous or claiming anything obviously contrary to established natural laws.
2. Contrary to public order or morality or prejudicial to life or environment.
3. Discovery of scientific principle or formulation or discovery of living or non-living substance.
4. Discovery of new form or property or use of a known substance or of a new use of a known process or machine or an apparatus not resulting in a new product.
5. Substance obtained from admixture of known components resulting in only aggregation of their properties.
6. Mere rearrangement or duplication of known devices.
7. A method of agriculture or horticulture.
8. Medical treatment or procedure of humans or of animals.
9. Plants or animals or seeds and biological process of production or prorogation of these.
10. Mathematical or business method or computer programme or algorithm.
11. Artistic or aesthetic creation like literary or dramatic or musical or cinematographic or television production.
12. Scheme or rule or method of performing any mental act or of a game.
13. Presentation of information.
14. Topography of integrated circuits.
15. Aggregation or duplication of known properties of components.
16. Inventions relating to atomic energy.

What kind of protection does a Patent offer?

Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party. However, in special circumstances, GoI can acquire a patent or direct to disburse compulsory license for a particular patent.

What Rights does a Patent Owner have?

A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.

Why are Patents necessary?

Patents incentivize inventors and/ or applicants by offering them legal recognition as well as material reward for their marketable inventions. These incentives encourage innovation, which promotes a knowledge economy and assures that the quality of human life is continuously enhanced.

How is a Patent Granted?

The first step in securing a patent is the filing of a patent application. 2 types of specification could be filed, namely Provisional Specification and Complete Specification. To secure the PRIORITY DATE, i.e. the date which shall be considered for legal protection, many Inventors/ Applicants files the Provisional Specification when some work is pending to complete the invention. The Provisional Specification should comprise of Title and a Short Description of the Invention. Within 12 months of the Priority Date, a Complete Specification with Title, Object, Background and Prior Arts, Brief and Detailed Description of the Invention, Claims, Abstracts and Drawing/ Model/ plan/ diagram etc. has to be submitted to maintain the Priority as claimed by the Provisional Specification. For biological materials, a sample has to be deposited to the designated repository of The Patent Office, GoI, for further references. Alternatively, a Complete Specification may directly be filed before the Patent Office.
The Most important part of an application is the “CLAIMS”, that is, information which determines the extent of protection granted by the patent. Claim drafting is the most important part of patent specification. Only Claims can determine the degree of infringement on a particular invention by other one(s).

Who grants Patents?

Patents are administered by the Governments of respective nations. Despite many efforts, there is no such thing as a true International Patent.
A patent is granted by a national patent office or by some regional office that does the work for a number of countries, such as the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO). Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.

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