What Is A Patent?

According to the World Intellectual Property Organization, a Patent can be defined as an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. Technical information about the invention must be disclosed to the public in a patent application to get a patent. In India, Section 53(1) of the Patents Act of 1970 defines the term “patent”.

What Is Meant by Grant of Patent

In simple terms, a grant of Patent means requesting permission from the government to obtain a Patent for one’s invention. It confers monopolistic rights upon the Patentee excluding the third party to sell, use, manufacture or import of the patented product without the consent of the patentee.

A patent is granted to the creator of the Patent when their invention satisfies the conditions for Patentability. The conditions are as follows:

• Novelty
• Inventive step or non-obviousness
• Industrial Application

Section 3 & 4 of the Patent Act, deal with the list of exceptions that do not fall under the invention and hence are non-patentable.¹

Procedure For Grant Of Patent

There is an entire elaborate procedure consisting of various steps that are to be followed before obtaining a grant of a Patent. The steps include the filing of an application for the grant, the publication of that application , request for examination of the said application , then Examination issue of First Examination Report and ultimately the grant or refusal of the patent .

The Indian Patent Office (IPO) is the body that meticulously examines all the patent applications and finalized the ones who are finally granted the patent.

Also the Patents Act , 1970 declares who are entitled to apply for patents as mentioned below-

Section 6 2 Persons entitled to apply for patents

—(1) Subject to the arrangements contained in section 134, an application for a patent for an invention might be made by any of the accompanying persons, in other words,— ²

(a) By any individual professing to be the valid and first creator of the invention;

(b) By any individual being the assignee of the individual professing to be the valid and first innovator in regard of the privilege to make such an application;

(c) By the legitimate agent of any deceased individual who is preceding his demise and is qualified to make such an application. (2) An application under sub-section (1) might be made by any of the persons alluded to in that either alone or mutually with some other individual.

Stages Of Patent Application

1. Filing of Application– Provisional/Complete: The Patent Application should be filed in form 1 accompanied by either provisional or complete specification in form 2 . Then along with other necessary documents the application is submitted at the IPO. The documents that are required at the IPO include details of the applicant as well as details of the invention, including specifications, corresponding applications filed in other countries, and so on. Once this is done, the IPO accords a date of filing and an application number to it.

2. Publication of Application: After the application procedure is complete , the IPO publishes it in the official Patent Journal making it available for public inspection. The application is published after 18 months from the priority date, and no fees are required of the inventor. A prior request for publication can be made (Rule 24A) in form 9 under section 11A(2) (optional step). If the subject matter disclosed in the patent application is not relevant to defence or atomic energy, the request will be considered. The IPO usually publishes the application within one month of receiving it.

The patent application, the full specification, and any other materials filed with it are all made available on the IPO website after it is published. The IPO charges a fee for certified copies of the documents. Any biological data deposited at the International Depository in conjunction with the application is made public after it is published.

3. Request for Examination(REF): The applicant must submit a request for examination together with the required fee after the application has been submitted and published before the IPO can begin to review it.The request for examination to examine the patent application is made in form 18 (including fee) within 48 months from the filing date by the applicant.

4. Examination issue of First Examination Report(FER): The controller now sends the patent application to the examiner for review, who determines whether it meets the criteria for patentability and produces the initial examination report (FER). A response to the FER must be submitted by the applicant within six months of the date the examination report was released. Such responses are eligible for an extension of up to three months as long as the request is submitted within the six-month window. The application is abandoned if the response is not submitted within this window of time.

5. Grant / Refusal of Patent: Once the application has met all the requirements of patentability, the patent is granted to the inventor with the seal from the patent office . Similarly, if the application fails to meet the requirements it is refused or rejected.

6. Opposition: Patent opposition falls into two categories under Section 25 of the Act: pre-grant (before to the patent being awarded) and post-grant (after 1 year of grant of the patent). Within a year of the patent’s publication date, anyone with an interest in the innovation may file an opposition using Form 7 and paying the required fee.

Grant Of Patent

The specific explanation of how a grant of Patent is carried out has also been stated clearly in section 43 of the Patent Act , 1970. ³

Section 43 ( The Patent Act, 1970)

1. Where an application for a patent has been found to be in order for grant of the patent and either

a) the application has not been refused by the Controller by virtue of any power vested in him by this Act; or

b) the application has not been found to be in contravention of any of the provisions of this Act,

the patent shall be granted as expeditiously as possible to the applicant or, in the case of a joint application, to the applicants jointly, with the seal of the patent office and the date on which the patent is granted shall be entered in the register.

2. On the grant of patent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.

Following the patent’s award, the patentee is required to pay a renewal fee each year to maintain the patent in effect. Beginning at the end of the second year following the date of filing, there is a renewal cost. However, only after the patent has been granted is the renewal fee and back payments due. Once each of these steps has been finished, the applicant will receive a patent that will last for 20 years from the application’s filing date. With the issuance of a patent, the owner of the invention gains the legal authority to bar unauthorised production, use, importation, and sale of the innovation.⁴

Footnotes

1. Section 3 & 4, The Patent Act, 1970
2. Section 6 , The Patent Act, 1970
3. Section 43 , The Patent Act, 1970
4. https://www.mondaq.com/india/patent/1110456/filing-a-patent-in-india-understanding-the-three-stages-to-grant

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