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”.1
Advantages of Getting Patents
- A patent grants you the right to prevent others from unauthorized copying, manufacturing, selling, or importing your invention.
- One can obtain protection for a set period of time, allowing one to keep competitors at bay.
- One can then use your invention for yourself.
- Alternatively, you can license your patent to others for use or sell it. This can be a significant source of revenue for your company. Indeed, some companies exist solely to collect royalties from patents that they have licensed, possibly in conjunction with a registered design and trademark.
Problems One Can Face Due To Non-Existence Of Patent
If creators decide to not obtain patents for their creations, the creators shall suffer serious problems, including theft of their creations, no credit or profits and ultimately even the right to use them themselves. It would allow others to misuse their creations and keep them from earning their rightful income from the same.
Therefore, for one to be able to obtain the most amount of benefit from their own creation one must obtain a patent.
What Are The Terms Of the Patent?
In simple terms, the Terms of the patent refer to the time period in which the patent is valid. The term of the patent is the time period during which the applicant is granted exclusive rights to prevent others from infringing, i.e., making, using, selling, importing, or distributing the patented invention without the applicant’s permission. An applicant is granted a set of exclusive rights for a patent for a set period of time, which is 20 years.
For the next 20 years, the patentee will have the exclusive right to prohibit others from making, using, selling, importing, or distributing the patented invention. However, once the patent term is completed, the patent is considered expired, implying that the patented invention can now be made, used, sold, imported, or distributed by anyone without the permission of the patentee.
Types of Patent Applications
The Patent applications in India can be divided into 3 types based on the ways chosen by applicants for filing a patent application :
- Ordinary application
- Convention application
- PCT National phase application
As long as the term of the patent which in our case is 20 years lasts, the patentee will have the exclusive rights to exclude others from making, using, selling, importing, or distributing the patented invention. Though, as soon as the term of the patent expires, it is clear that the patented invention can now be used, sold, imported, or distributed by anyone without needing the permission of the patentee.
When the term of the patent is active, the patentee can enjoy many benefits from it like having a monopoly in the market over the patented product by stopping others from exploiting the patent . The patentee will also obtain the right to claim damages from entities that infringe upon the patent as well as sue them. This is why the term of a patent is very important.
The term of a patent is fixed at 20 years; however, the calculation of the start of the term of a patent may change depending on an applicant’s approach when filing a patent application in India. The calculation of the start of the patent term (considering only the three types of applications mentioned above) differs in two scenarios, one for Ordinary applications and one for Convention applications or PCT National phase applications.
Ordinary Application
The patent term in an Ordinary application begins with the earliest priority date. When a provisional application is filed followed by a complete application within the 12-month due date, the date of filing the provisional application (the one with the earliest priority date) is used to calculate the patent term. For example, assuming a provisional application is filed on February 01, 2000, followed by a complete application filed on February 01, 2001. Assuming that a request for early publication was filled using Form 9 on February 01, 2001 along with the complete application, the application may be published within 2 weeks from the date of filing the request . The application may then be prosecuted and may be granted. In the instant case, the term of the patent is considered from the earliest priority date, i.e., the date of filing the provisional application. The expiry of the instant patent application will be on February 01, 2020.
Now, since the application was published on February 15, 2001, the patentee has the right to claim damages, if any, from entities infringing on the patent from February 15, 2001, until the expiry .
Convention application/PCT National phase Application
In a a Convention application, an application (provisional/complete) may be first filed in a convention country and then enter India within 12 months from the earliest priority date of the convention application. Here the date of filing the application in India is considered for calculating the term of the patent.
For example, assuming a provisional application been filed on February 01, 2000 in a convention country followed by a complete application in India filed on February 01, 2001. Assuming that a request for early publication was filed using Form 9 on February 01, 2001 along with the complete application, the application may be published within 2 weeks from the date of filing the request . The application may then be prosecuted and may be granted. Here the term of the patent is considered from the date of filing the application in India i.e., the date of filing the complete application in India which is February 01, 2001, in the instant case. Therefore, the expiry of the instant patent application will be on February 01, 2021.
In a case of PCT National phase Application, a provisional application is filed in any of the PCT member country including India, and then file a PCT application within 12 months from the earliest priority date, the date of filing the PCT application is considered for calculating the term of the patent. For example, assuming a provisional application being filed on Feb. 01, 2000, in any PCT member country followed by a PCT application filed on Feb 01, 2001, simultaneously entering India on the same date. Considering that a request for early publication was field using Form 9 on January 01, 2001 along with the complete application, the application may be published within 2 weeks from the date of filing the request .The term of the patent, in this case, is considered from the date of filing the PCT application which is Feb 01, 2001, in the instant case. Therefore, the expiry of the instant patent application will be on Feb. 01, 2021.
In both the cases PCT or Convention application, the term of the patent expires effectively by a maximum of 21 years from the earliest priority date. Therefore, the patentee has the time till the expiry of 21 years to claim damages due to infringement of patent.2
Footnotes
- Section 53(1) of the Patents Act
- https://www.mondaq.com/india/patent/403564/patent-law-in-india–everything-you-must-know
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