Meaning of the term Patent:
- It refers to some grant of privilege, property or authority made by the government or the sovereign of the country to one or more individuals. The instrument by which such grant is made is known as Patent.
- The term Patent acquired statutory meaning in India when the Patent’s Act was enacted in 1970.
- Patent, under the Act, is granted by the controller to the inventor for a period of only 20 years. After expiry of the period for which the exclusive rights are granted to the inventor, the invention can be put to use by any person other than the one to whom the patent had been granted.
- The Act conveys to the inventor substantive rights and secures to him the valuable monetary rights which he can enforce for his own advantage either by using it himself or by conveying the privileges to others.
- The person to whom the patent is granted is known as Patentee.
Form of Property:
- The patentee can sell whole or part of his property(patent). He can also grant license to others to use the patented property. He can also assign such property to any other. Such sale, license or agreement of patented property naturally has to be for valuable consideration, acceptable manually.
Features and Principles of Patent:
- Invention must be new, useful and non obvious. To be patentable the invention must be new product or process; useful and capable of industrial application. Another feature of an invention to be granted as patent is that it should involve technical advance as compared to the existing knowledge or have economic significance or both. For an invention to be patentable
(a) It must be new product or process. (b) It must be useful. (c) It must capable of industrial application. (d) It must be non- obvious.
2. It must be fully disclosed. While the Act grants the exclusive right to the patentee to exploit the invention for commercial gain for a specific period it also imposes on him the duty of full disclosure of the invention in complete specification so as to facilitate anyone from the public working the invention, once the protection period expires.
3. Use and acquisition of patented invention by the central government. The grant of a patent confers the exclusive rights of use on the patentee for commercial gain but the Act also recognizes that the central government may use any invention without paying royalty to the inventor.For example the central government can use an invention being medicine or drug for the purpose of distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the government.
4. Some restricted use of the patent permissible by the law. The essence of the patent is conferring of the exclusive rights on the patentee. Yet some restricted use of the invention by a person other than the patentee is permissible by the law. For instance, use of the patented invention is permissible for research and experimental purposes or for imparting knowledge or instructions to the pupils.
6. Use by a person other than the patentee constitutes infringement of the patent. The Act expressly provides that the use of the patent by a person other than the patentee or assignee or licensee would be an infringement of the patent and as such illegal, leaving apart its use by government for public purpose and the permissible use for research, experiments or imparting knowledge to the students.
7. Special status of patents relating to medicines, food items and chemicals. No product patent can be granted related to any process of medicinal, surgery, diagnostics, therapeutic or other treatment of human beings, food items and chemicals.Only the process of manufacturing such products can be patented.
8 Protection to unused patents. In case of innovation or discovery which unlocks the door of science and reveals the secret of dreaded disease, it is possible that the patentee could be permitted to suppress that invention by the terms of a letters patent and withhold from humanity, the benefits of the cure.
9. Guidelines for restrictive patentable sectors etc. As per the guidelines in the Patents (amended) Act,2005 any non- inventions, inventions relating to atomic energy, or those to contrary to the public order or causing serious prejudice to human beings, animals, health or environment will not be patentable.
Non- Patentable Inventions:-
- Mere discovery of scientific principle or formula is not patentable.
- Methods of agriculture are not patentable.
- Mere combination of two or more elements without exercising any inventive faculty and without involving any inventive steps cannot be subject matter of patent.
- Contrary to public order or morality inventions are not patentable.
- No product patent can be granted related to any process of medicinal, surgery, diagnostics, therapeutic or other treatment of human beings, food items and chemicals.Only the process of manufacturing such products can be patented.
- Dramatic, musical or artistic works are not patentable.
- Presentation of information is not patentable.
Procedure for Obtaining Patent:
- Submission of application
- Examination of application
- Advertisement of acceptance of complete specifications
- Opposition to grant of patent to the applicant
- Hearing of the parties
- Grant ans sealing of the patent
Submission of Application:
- Section 6 to 11 of the Act provides the conditions which are to be satisfied by the applicants while submitting application for grant of patent.
Section 6: Person entitle to apply for patent:
A patent application an be made
- By any person claiming to be the true and first inventor.
- By any person being the assignee of the person claiming to be the true and first inventor.
- By legal representative of any deceased person.
Section 7 : Form of application:
- Section 7 subsection 1 provides that only one application can be made for one invention.
- Section 7 subsection 2 provides that where an application is made by the virtue of an assignment of the right to apply for the patent for the invention, there shall be furnished with the application or within such period as may be prescribed after the filing of the application, the proof of the right to make application, i.e., some documents showing that assignment by the true and first inventor has actually been made in favor of the applicant.
- Section 7 (3) provides that every application should state that the applicant is in possession of the invention and shall name the person claiming to be the true and first inventor. And where the person so claiming to be the first and true inventor is not the applicant, the application shall contain a declaration that the applicant believes the person so named to be the true and first inventor.
- Section 7(4) provides that every such application shall be accompanied with a provisional or complete specification.
Section 8: Special provision for foreign applicant
- A statement setting out detailed particulars of such applications.
- An undertaking, that up to the grant of patent to India, he would keep the controller informed in writing from time to time, of detailed particulars as required.
Section 9: The applicant to file provisional and complete specifications.
- Section 9 provides that when an application is accompanied by provisional specification, complete specification shall be filed within 12 months from the date of application and if not so filed then the application shall be deemed to have been abandoned.
Section 10: Complete specification
- A patent specification is a technical document describing the invention specification may be provisional which gives the initial description of the invention when the application is filed. A complete specification gives full and sufficient detail of an invention in such a manner that a person skilled in the art can use the invention when he reads such a description.
- The purpose of filing the complete specification is to make available the invention to the public on the expiry of the terms of the patent.
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