PATENT
FAQ
What is a patent?
A patent is a monopoly right granted by the government to
a person who has invented a new useful articles or an
improvement of an article or a new process of making an article. It
consists of an exclusive right to manufacture the new
article invented or manufacture an article according to the
invented process for a limited period. After the expiry of
the duration of patent, anybody can make use of the
invention
Who can apply for a patent?
i) Any person being the inventor of an
invention or his assignee can apply alone or jointly with
any other person.
ii) Applicant of a application in a basic
convention country can apply by himself or through his
assignee.
iii) Applicant of a basic application in a basic
convention country can apply by himself or through his
assignee.
What is a patentable invention?
As per the Indian Patents Act ,1970 invention means
any new or useful -
i) art , process , method or manner of manufacture
ii) machine ,apparatus or other article.
iii) Substance produced by manufacture and
includes any new and useful improvement of any of them and
alleged invention .
Whether a Foreign National is competent to
file patent application in India?
Yes .A Foreign National residing abroad is not prohibited
from making an application and obtaining the grant of patent
in India.
Can a Firm or a company apply for a patent
?
Yes. A Partnership firm , a Private or Public Ltd company
or a Corporation can apply for a patent .But they cannot
invent and therefore cannot be termed as 'inventor'. Hence
such bodies can apply for patent as the assignee of the
'inventor' under the Indian Patents Act,1970.
Whether the 'prior sale' can be made
before filing patent application?
No. The invented article must not be put in the
market for sale or be physically sold under the invoice
before filing patent application in the patent office.
Otherwise the invented article or process will loose novelty
to create sufficient grounds for invalidating the chances of
getting a patent. Hence the novelty in the invention is lost
if the article is demonstrated , worked or sold .Therefore
it is advisable not to commence the commercial marketing of
an invented article before applying for patent.
What are the stages for obtaining a
patent ?
i) Submission of application accompanied by either
a provisional or complete specification.
ii) Examination of application .
iii) Advertisement and acceptance of complete
specification in the Patent Gazette.
iv) Opposition to the grant of patent , if any.
v) Grant and sealing of the patent.
How long does it take to grant
patent ?
At present on an average it takes about 4-5 years from
the date of filing application .It may be reduced in future
because of computerization of Patent offices.
What is a specification ?
A patent specification is a technical document describing
the invention. A specification may be either provisional or complete. Provisional
specification gives the initial description of an invention
when the application is filed .A complete specification
gives full and sufficient of an invention.
What is meant by 'term of a patent'?
The term of the patent is meant for duration of the
validity of the patent.
i) The term of patent will be FIVE years for food, drug, medicine
cases from its sealing date of seven years from the date of
patent whichever is shorter.
ii) The term of patent in respect of other
inventions will be FOURTEEN years from the date of patent
(i.e. date of filing complete specification).
What are the documents to be
accompanied in the patent application ?
Application for patent is made on the prescribed form along with
the following documents.
i) Power of Attorney in favor of a person acting
as a Patent Agent ( this is not necessary in case if the
application is filed by the applicant himself /themselves.
ii) A PROVISIONAL or COMPLETE specification in
triplicate describing the invention.
iii) Drawings in triplicane (if any)
Is it possible to take legal action
for 'infringement of patent' during the pendency of a patent
application?
No. It is not possible to initiate legal action against
the infringers during the pendency of patent application
patent is a statutory right granted by the government .It
will take minimum of 4 to 5 years for examination of patent application
and then only it will be decided ' whether to grant a patent
or not'. Till then it will be called as 'invention' only. Until
the statutory right is conferred upon the applicant for his
invention, the question of infringement will not
arise.Further there is no common law rights like that of
'passing off' in trademark matters for the patent
applicants.
What is an alternative remedy in
case if the invention is pirated or copied during the
pendency of patent application?
The drawings which accompanied the patent specification
will play an important role in such cases. Copyright
can claimed by the applicant for such patent drawings. Hence
it is advisable to initiate legal action for 'infringement
of copyright' in the Industrial or Engineering drawing
accompanied the patent specification on the basis that the
pirator has applied the principle of 'reverse engineering '
by stripping down and dismantling the inventor's article and
then made sketches of the relevant parts and recording
dimensions making working drawings from sketches and then
making the pirated article from such working drawings and
such 'reverse engineering ' constitutes infringement of
copyright in the engineering drawings which accompanies the
patent specification.
Whether the common law remedy
'passing off' is available during the pendancy of Patent
Application?
No, the common law remedy of 'passing off ' is not
available to the Inventor/Applicant whose patent application
is pending for final registration.
The Concept of 'passing off ' is common law remedy
and it is available for a trademark or a trade name only on
the basis of 'prior user' status. Further
trademark rights are inheritable rights and such
rights can be enjoyed till 'user', of the trademark. But
patents are granted for limited periods only and after the
expiration of the said period, it will be 'public juris '
i.e., become public. It means anybody is entitled to use the
lapsed patent after the expiration of the period. Therefore
the common law remedy for 'passing off' will not be
available for patent pending for registration under the
Patents Act,1970.
