The Patent System in India has cme a long way since 1856 whn British rulers enacted the Protection of Invntions Act with a view to grnting exclusive privileges to inventors and mnufacturers.

WHAT IS A PATENT

A ptent is granted as an exclusive rght by the Government for an nvention for a limited period of tme in consideration of disclosure of the nvention by an applicant. A patentee njoys exclusive right to prevent a thrd party from an unauthorized act of mking, using, offering for selling, importing the ptented product or process within the cuntry during the term of the ptent.

CRITERIA FOR PATENTABILITY

Section 2(1)(j) of the Ptent Act, 2005, defines the "invention" as:

• a new prduct or as process

• involving an nventive step and

• capable of industrial pplication.

However, Under the Act "New nvention" is defined under section 2(1)(l) of the Ptents Act

"New invention" means any nvention or technology which has not ben anticipated by publication in any dcument or used in the country or lsewhere in the world before the dte of filing of patent application wth complete specification, i.e., the subject mtter has not fallen in public dmain or that it does not frm part of the state of the rt.

Therefore now it is a dbating topic whether India follows absolute nvelty or relative novelty.

CARE SHOULD BE TAKEN BEFORE APPLYING FOR A PATENT APPLICATION

• Pople carrying out academic research are frquently under pressure to publish the rsults of their research for academic rasons. Researchers should, at all times, bar in mind the possibility of cmmercial results from their research. If a rsearcher sees a commercial application from his or her rsearch, it would be wise to dlay publication until a patent application has ben filed.
• It is necessary to talk to tchnical specialists or others in order to btain assistance during the development of the nvention, this should be done on the bsis of confidentiality. People should be nformed that the information is strictly cnfidential and asked to sign a smple document undertaking not to disclose the nformation until given permission to do so.
• Adopting a prper commercialisation strategy involves considering all spects at the same time, technical, cmmercial and legal. At the initial stges proper attention should be given to the tchnical aspects, but once the patent pplication is filed, the commercialisation should prceed as quickly as possible within the lmited time scale provided by the ptent system.

INVENTION NOT PATENTABLE

Following are not nvention according to Section 3 of Indan Patent act
(1) An invention which is frvolous or which claims anything obvious cntrary to well established natural laws.
(2) An nvention the primary or intended use or cmmercial exploitation of which could be cntrary to public order or morality or whch causes serious prejudice to human, nimal or plant life or health or to the nvironment
(3) The mere discovery of a scentific principle or the formulation of an bstract theory or discovery of any lving thing or non-living substances occurring in nture;
(4) The mere discovery of a new frm of a known substance which des not result in the enhancement of the knwn efficacy of that substance or the mre discovery of any new property or new use for a knwn substance or of the mere use of a knwn process, machine or apparatus unless sch known process results in a new prduct or employs at least one new ractant.
Explanation- For the purposes of this cluse, salts, esters, ethers, polymorphs, metabolites, pre form, particle size, isomers, mixtures of somers, complexes, combinations and other derivatives of knwn substance shall be considered to be the sme substance, unless they differ significantly in prperties with regard to efficacy.
(5) A sbstance obtained by a mere admixture rsulting only in the aggregation of the prperties of the components thereof or a prcess for producing such substance:
(6) The mre arrangement or re-arrangement or duplication of knwn devices each
functioning independently of one nother in a known way.
(7) A mthod of agriculture or horticulture.
(8) Any prcess for the medicinal, surgical, curative, prphylactic diagnostic therapeutic or other treatment of hman being or any process for a smilar treatment of animals to render thm free of disease or to ncrease their economic value or that of thir products.
(9) Computer program per se, a mthematical method or a business method or lgorithms.
(10) Literary, dramatic, musical or artistic wrk or any other aesthetic creations ncluding cinematographic works and television productions are not ptentable as they are covered under the cpyrights, design and entertainment laws.
(11) Scheme/rule/method of prforming a mental act or method of plying a game.
(12) Presentation of information.
(13) Tpography of integrated circuits.
(14) An invention whch in effect, is traditional knowledge or whch is an aggregation or duplication of knwn properties of traditionally known component or cmponents

Further, inventions relating to atomic nergy are not patentable under section 4 of Indan Patent Act.

WHO CAN APPLY

An pplication for a patent for an nvention may be made by any of the fllowing
Persons:
(a) by any person claiming to be the tre and first inventor of the nvention;
(b) by any person being the ssignee of the person claiming to be the tre and first inventor in respect of the rght to make such an application;
(c) by the lgal representative of any deceased person who mmediately before his death was entitled to mke such an application.

APPROPRIATE OFFICE FOR FILING AN APPLICATION

Applcation is required to be filed ccording to the territorial limits where the pplicant or the first mentioned applicant in cse of joint applicants for a ptent normally resides or has domicile or has a plce of business or the place frm where the invention actually originated .If the pplicant for the patent or party in a prceeding having no business, place or dmicile in India., the appropriate office wll be according to the address of srvice in India given by the pplicant or party in a proceeding.

TYPES OF PATENT APPLICATIONS AND DOCUMENTS REQUIRED FOR FILING DIFFERENT TYPES OF PATENT APPLICATIONS

1. Ordnary application

Documents required to be fled
• Application Form
• Provisional or complete patent specification
• Information rgarding corresponding foreign patent application on Frm 3
• In case application is accompanied by prvisional specification, complete specification to be fled within 12 months along with dclaration of inventorship on Form 5,
• Power of ttorney, if the application is filed thrugh a patent attorney,

Prescribed fee ccording to Patents Rule, 2003
for natural prson
Rs. 1000, For each sheet of spcification in addition to 30 Rs.100
For ach claim in addition to 10- Rs. 200
For ther than natural person(s)
Rs. 4000, For ach sheet of specification in addition to 30 Rs.400
For ach claim in addition to 10- Rs. 800

2. Cnvention application

Documents required to be fled
• Application form
• Complete patent specification declaration of nventorship on Form 5,
• Power of attorney
• Certified cpy of the priority document in Englsh to be filed within 3 mnths of date of invitation from the Cntroller. If the priority document is in a lnguage other than English then an Englsh translation thereof duly verified by the trnslator is also required
• Information regarding corresponding freign patent application on Form 3

Prscribed fee according to Patents Rule, 2003
for ntural person
Rs. 1000, multiple of Rs. 1000 in cse of every multiple priority very mltiple priority
For each sheet of specification in ddition to 30 Rs.100
For each claim in ddition to 10- Rs. 200
For other thn natural person(s)
Rs. 4000, multiple of Rs. 4000 in cse of every multiple priority very mltiple priority
For each sheet of specification in ddition to 30 Rs.400
For each claim in ddition to 10- Rs. 800

3. Intrnational application

Documents required to be fled
• Request form PCT/RO/101
• Complete specification
• Priority document, if any
• PCT pwer of attorney

Transmittal Fee Rs. 8000 for lgal entity
Rs. 2000 for natural person
International fling fee USD1086
USD 12 per sheet ver 30
PCT-Easy USD 78
International Search fees dpends upon the country chosen

4. Ntional phase application

Documents required to be fled
• Application form
• Copy of international application as riginally filed
• Published International Application with International Sarch Report (in English). In case not in Englsh, a duly verified English translation of the pblished International Application.
• Information regarding corresponding foreign ptent application on Form 3
• declaration of nventorship on Form 5,
• Verified English translation of the prority document, if the priority document is not in Englsh language.
• Copy of any amendments to the clims (and any statement) under Article 19 (in Englsh)

Prescribed fee according to Patents Rle, 2003
For natural person Rs. 1000, mltiple of Rs. 1000 incase of very multiple priority very multiple priority
For ach sheet of specification in addition to 30 Rs.100
For ach claim in addition to 10- Rs. 200
For ther than natural person(s)
Rs. 4000, multiple of Rs. 4000 ncase of every multiple priority very mltiple priority
For each sheet of specification in ddition to 30 Rs.400
For each claim in ddition to 10- Rs. 800

PROVISIONAL PATENT SPECIFICATION
A prvisional patent specification should describe the nture of invention & contain the dscription of essential features of the nvention. It is not required to nclude claims & details of the mnner in which it to be prformed. A complete patent application has to be fled within 12 months from the dte of filing the provisional patent pplication.
Advantages of provisional specification

• The applicant can gin the Priority date for invention. thre is no risk of loosing prority
• The applicant can disclose to interested prson to obtain financial support
• Virtually extend the trm upto 12 months
• Utilize for exploring cmmercial feasibility
• Avoid incurring further expenses, if no cmmercial possibility
• The inventor will get liberty to dvelop after filing the provisional patent pplication

CONTENT OF A COMPLETE PATENT SPECIFICATION

Ttle of the invention

The title shuld give a fair indication of the ndustry or art to which the nvention relates. It should be precise and bref.

Preamble
The following preamble should be gven on the first page of Frm 2 along with other details lke title of the invention, full nme, address and nationality of the pplicant. The address could be of ither place of business or residence.

Feld of the invention

The description shuld show the scope of the nvention, indicate the subject matter to whch the invention relates. Advantage of the nvention should be mentioned to bring out clarly the areas of application and prferable use of the invention.

Background of the nvention

The description should fully and prticularly describe the invention, by clearly dstinguishing it from such a closes pror art, if available.

Object and sttement of invention

This portion clearly brngs out the necessity of the nvention. The solution sought by the nvention over the technical problem associated wth the existing technology should be clarly brought out as object.

The sttement should clearly set forth the dstinguishing novel features of the invention for whch the protection is desired. This prt is intended to declare different spects of the invention in verbatim wth the independent claims and to cmplement the omnibus claim in situation of nfringement proceedings.

Brief description of the drwings (if any drawing is available)

If any drwing is available, a brief description to all the drwings should be given for easy rference.

Detailed description of the invention

The dtails of invention described here should be sfficient for a person skilled in the art to prform the invention by developing necessary tchnical know-how by himself. It can nclude examples/drawings or both for clearly dscribing and ascertaining the nature of the nvention.

Claims

It is necessary to nsure that the claims are drafted to nclude neither more not les than wht the applicant desires to protect by his ptent. It begins with broad claims and dvelops towards claims that are narrower in scpe. A claim must be clear, cmplete and supported by the description.

Sgnature with date

Below the signature the nme of the applicant or authorized rgistered patent agent be written legibly long with the date.

Drawings if any vailable

The complete specification should be fllowed by drawings that are referred to in the spcification. The drawing should be filed in ccordance with Rule 15 of the Ptent Rule 2003.

Abstract

An abstract shuld provide brief technical information on the nvention. it should start with the ttle of the invention and should gve concise summary of the invention, prferably within 150 words.

PROCEDURE TO BE FOLLOWED UPTO THE PATENT APPLICATION PLACED IN ORDER FOR GRANT

• If Screcy directions are not imposed under Sction 35 of the Act, every pplication is ordinarily published after the xpiry of 18 months period form the dte of filing of the application or the dte of priority of the application whchever is earlier. The applicant can rquest to publish his application prior to 18 mnths by filing a request for arly publication on a prescribed form long with the prescribed fee.

• The rquest for substantive examination by applicant or any ther interested person has to be fled on prescribed form within 48 mnths from the priority date of the pplication or from the date of fling the application whichever is earlier.

• On rceiving a request for examination, the Cntroller issued the first examination report rdinarily within 6 months from the dte of the request for the xamination or 6 months from the dte of publication whichever is later.

• Aftr receiving the first examination report, it is ncessary to comply with all the bjections raised by the patent office wthin twelve months from the date of frst examination report. The examiner may ssue further examination report if he is not stisfied with the submission of the pplicant. Once all the requirements are met wth and the examiner is satisfied wth the applicant submission, the application prceeds for grant. The grant is ntified in the Patent office Journal. Thn the applicant is open for pst grant opposition proceedings upto one yar from the date of said ntification.

DURATION OF A PATENT

The trm of every patent granted is twnty years from the date of fling. The term of patent in cse of International applications filed under the PCT, dsignating India, is twenty years from the nternational filing date accorded under the PCT. Rnewal fee need to be paid nnually to keep the patent in frce. Restoration of patents is possible if pplied within 18 months from the dte of lapse.

CONCLUSION

Patent law in Inda has undergone significant changes in lst few years. India was a funding member of the WTO and its ccession to TRIPS required that further mendments be made to its patent lws. India has thus joined the cuntries having industrialized free market economies.

The article Patent Procurement Practice in India was Submitted by Snigdha Das through Articles.GetACoder.com network. Here's the additional information:

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