How does patent work?
Patents protect an invention that is defined as a new product or process involving an inventive step and could have an industrial application.
A patent is a legal right of the patentee to not allow others without his consent from manufacturing, using, selling or importing a patented product or process for a limited period of time. It is granted so that the patentee makes full disclosure of his invention.
The Office of Controller General of patents, designs & Trademarks, a Government of India body, administers Patents, Designs, and Trademarks in India. Patent Offices is based out of Kolkata with branches in Chennai, New Delhi, and Mumbai.
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What is patentable?
Any new product or process can be patented, which involves non-obvious inventive steps and is capable of commercial applications.
In India, patent is granted on first-to-apply basis. Either the inventor or his assignee / legal representative can apply for patent.
Any person who is resident of India has to first submit patent application in India and wait for 6 weeks before filing such an application abroad, if he wants so.
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How to apply for a Patent?
To apply for a patent, an electronic application has to be submitted to the Patent Office along with the following documents:
The inventor, in order to obtain registration of
a patent, has to file an electronic application with the Patent Office in the prescribed form along with the necessary documents as required. A patent application usually contains the following documents:
- an Application Form (Form1 – available at the Patent Office)
- a Provisional / Complete Specification of the invention (Form 2 – available at the Patent Office)
- a Declaration (Form 5 – available at the Patent Office)
- Drawings, if any
- a Power of Attorney, if a patent agent is assigned (Form 26 – available at the Patent Office)
- If you are a startup, you can also file for an expedited examination.
After a patent application is submitted, it is published in the Patent Office Journal.
The Patent Office examines the patent applications and issues an official action with procedural and substantive objections. The patentee or his legal representative has to respond to the official action. If the Patent Office is satisfied with the response, it may grant the patent.
What is Patent Infringement?
Patent rights are territorial in nature.
This means your patent in India, once granted, is valid across India. You get the exclusive right to allow anyone to make, use, sell or import your patented product or process across India. If someone does so without your consent, then the same would amount to patent infringement.
In case of patent infringement, you can approach the court of law to obtain remedies that includes injunctions and damages. For infringement of a patent, only civil remedies are available.
The term of a patent is 20 years from the date of filing the patent application.
In order to claim damages in a patent infringement suit, your product should be marked with the word “patent” or “patented” along with the patent number. Otherwise, the defendant may claim that he was not aware that the patent existed.
What is Form 27?
After getting a patent, you need to yearly file to the Patent Office a statement (Form 27 – available at Patent Office) reporting commercial applications of your patented product or service in India.
Non-compliance with this requirement may invite penalty of imprisonment which may extend to 6 months, or with fine, or with both, as provided under section 122(1) (b) of the Patents Act.
Can a patent be licensed compulsorily?
If someone complains to the Patent Office that a patented product or service is not being commercially exploited to its fullest extent within Indian territory, and the Patent Office agrees to the complain, it may grant compulsory license after 3 years of granting the patent.
That’s why you should be submitting Form 27 every year to the Patent Office, detailing commercial application of your patented product or service.
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