What are Patents?

A Patent is an intellectual property used to incentivize innovation, by providing protection to the inventor, in terms of exclusive rights to make, use and sell the invention for a specified number of years. The Patents Act, 1970 (Act 39 of 1920) (hereinafter referred to as “the Act”), doesn’t define “Patent” in one definition. It provides a leading definition for Patents under Section 2(1)(m), by defining a Patent as “a patent for any invention granted under this Act”. This definition makes it clear that a patent can be granted only for an “Invention”. The question which now arises is “Are all inventions patentable?” The answer is, no!

The Indian Patent Office grants patents on a “First to File” Basis. This means that the person who files the Patent Application first at the Patent Office, will be the one to receive the patent, irrespective of whether he was the first to invent it, or start using it. This is contrary to the system prevailing in the United States of America, where patents are granted on a “First to Invent Basis”.

There are certain characteristics that an invention must necessarily possess, in order for it to be “patentable” under the Act. Section 2(1)(j) defines an “Invention” as:

 “a new product or process involving an inventive step and capable of industrial application.” The essential characteristics that emerge from this definition are as follows:

1. Novelty

Section 2(1)(l) of the act defines a “new invention” as “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”. The features of novelty borne out from Section 2(1)(l) are that:

•  The invention should be related to technology;

•  It must not be published in any literature/document anywhere in the world;

•  Alternatively, it must not have been used anywhere in the world; and

•  Any publication with respect to the invention should not be available anywhere, prior

to the date of filing the patent application.

Satisfaction of the afore-referred conditions ensures to a large extent, that the invention in question is an original development of the patent applicant, and nothing like it subsists anywhere else in the world. In order to ascertain the novelty of an invention, the Indian Patent Office conducts a search for “prior art” to check whether any invention elsewhere, contains all the elements of the subject invention. It is noteworthy to mention that if a prior art is found to contain only an element(s) of the subject invention, it is negated as being irrelevant. And if a prior art is found to consist of all the elements proposed in the patent application, the invention is said to be “anticipated”.

2. Inventive Step/Non-Obviousness

Section 2(1)(ja) of the Act, defines “inventive step” to mean “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”. The inventive step ensures that the subject invention facilitates some improvement, either technologically, or economically, or both. This feature ensures that patent applications are not filed for frivolous and thoughtless inventions.

3. Industrial Application

The subject invention should have industrial application, i.e. it should be made or used in an industry. For example, a medicine to cure cancer, for the pharmaceutical industry, a mechanical car-part that helps the car fly, for the automobile industry, are both examples of patentable inventions having industrial application.

Types of Patents

The types of patent applications granted in India are:

•  Ordinary or Non-Provisional Application: filed when the applicant doesn’t have any priority to claim or where the application is not filed in pursuance of any preceding convention application.

•  Convention Application: filed for claiming a priority date based on the same or substantially similar application filed in any of the convention countries. The applicant is required to file an application in the Indian Patent Office within a year from the date of the initial filing of a similar application in the convention country.

•  PCT International Application: this is an international application to streamline patent application process in many countries at one go.  PCT National Phase Application: A national phase application is filed in each country where protection is sought.

•  Patent of Addition: this Application is filed in the event that an existing application needs to be modified. A patent of addition can only be granted after the grant of the parent patent.

•  Divisional Application: this Application is filed if the Applicant wishes to divide the Parent application seeking protection for more than one inventions, into separate ones.

Indian Patent Act, 1970: Salient Features

The Patents Act, 1970 as it stands today, provides for inter-alia the following:

• Provides for both product and process patents. Process patents are granted for a particular manufacturing process, rather than the product.;

• Term of a patent has been increased to 20 years;

• A Request for examination for a patent has to be filed on Form-18, specifying the details of the applicant or other interested person, application number, title, date of filing and publication date. After submission of such request a formal examination process shall be initiated as per the Patent Act 1970.

• Provides for both pre-grant and post-grant opposition, i.e. an interested person can oppose the patent application not just before it being granted, but even after;

• The Intellectual Property Appellate Board was constituted, in order to facilitate fast track mechanism for disposal of appeals which had hitherto been languishing before the High Courts;

• Provides for protection of bio-diversity and traditional knowledge. However, patents can be granted only to new inventions related to bio-diversity and traditional  knowledge, and not already existing knowledge. This was done to ensure that the socio-ethnic communities to which such bio-diversity or traditional knowledge are unique, do not lose their rights to big corporates and conglomerates;

• Provides for the Publication of applications after 18 months with the facility for early publication. Section 11A(2) of the Act, provides that the Applicant can request the Controller to publish his/her application at a time before the expiry of the standard 18 month period, and the Controller is empowered to allow/disallow such application;

• Provided for substantially reduced time-lines.

Aishwarya Says:

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