Why should one patent his invention?
One should patent his invention to enjoy exclusive rights over the invention. If the inventor does not obtain patent rights for his invention and introduces his product/process based on his invention in the market, any body can copy his invention and exploit it commercially. To debar others from using, selling, offering for sale or manufacturing the inventor must obtain a patent. The inventor can use it himself/herself, sell or licence it to profit commercially.
What are the criteria adopted for grant of a patent to an invention?
An invention must meet the following three criteria to be eligible for grant of patent:
- Inventiveness (Non-obviousness).
Novelty: An invention will be considered novel.
- If it does not form the state of the art or has not been described orally.
- If it has not been published or not used before the date of filing the patent application.
Inventiveness (Non-obviousness): A patent application involves an inventive step, if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent.
Usefulness: An invention must possess utility for the grant of patent. No valid patent can be granted for an invention devoid of utility.
What is patentable?
Invention means any new and useful:
- Process, method or manner of manufacture.
- Machines, apparatus or a product.
- Substances produced by manufacture and includes any new and useful improvements of any of them and an alleged invention.
Inventions claiming substances intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi conductors and inter-metallic compounds) are now patentable under the patent ordinance 2004.
What is not patentable?
- An invention which is frivolous or which claims anything obviously contrary to well established natural laws e.g. different types of perpetual motion machines.
- An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health e.g. a process for the preparation of a beverage which involves use of a carcinogenic substance, although the beverage may have higher nourishment value.
- The mere discovery of scientific principle or formulation of an abstract theory. For e.g. Raman Effect.
- The mere discovery of any new property or mere new use of known substance or the use of such known process, machine or apparatus; unless such known use results in a new product or employs at least one new reactant.
- 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 rearrangement or duplication of features of known devices each functioning independently of one another in a known way.
- A method of agriculture or horticulture.
- Any process for medical, surgical, curative, prophylactic or other treatment of human beings or any process of similar treatment of animals or plants.
- Inventions relating to atomic energy.
When should an application for a patent be filed?
Filing of an application for a patent should be completed at the earliest possible date and should not be delayed until the invention is fully developed for commercial working. A provisional application can be filed with a brief synopsis disclosing the essence or the nature of the invention.
Can a published or disclosed invention be patented?
No. Publication or disclosure of the invention anywhere by the inventor before filing of a patent application would disqualify the invention to be patentable. Hence inventors should not disclose their inventions before filling of the patent application. When disclosing, the number and the date of the patent application should be given by way of information to public.
Who is responsible to ensure that the patent has not been infringed?
It is the sole duty/ responsibility of the patentee to see that his/her patent is not being infringed upon by someone else. It is the patentee's duty to file a suit of infringement against the infringer.
What is the term of a patent?
In India, It is 20 years from date of application.
What is considered as the date of patent?
The date of patent is the priority date, which is the date on which first application (provisional / Complete / PCT) filed disclosing the invention. However, the date of publication is also important because it is from this date that the legal protection of an invention disclosed in the patent takes effect. The term of the patent is counted from this date of application.
How does a patent expire?
A patent can expire in the following ways:
- The patent has lived its full term i.e. the term specified by the patent act of the country.
- The patentee fails to pay the renewal fee. A patent once granted by the Government has to be maintained by paying annual renewal fee.
- The validity of the patent has been successfully challenged by an opponent by filing an opposition.
- The patent is revoked.