Basic Patent Law

by Koka Tarini Siddhartha

At Artistik License, we often come across people who work in quirky and interesting creative spaces. In the course of our work, we meet many young enterprising and aspiring innovators and even some experts in their fields who lack a basic understanding of the laws available to protect their work.

More than once, we have encountered innovators, who when asked if they were aware of the rights they have over their work, replied confidently saying, “Yes, of course! Copyrights, trademarks, patents, designs… all those rights.”

This mash-up of various intellectual property rights (IPRs) in the hope of conveying that one knows their rights, unfortunately translates otherwise. Every IPR covers a different work, with each one offering varying levels of protection. In previous posts, we have discussed in detail the definition, scope and objectives of copyrights and trademarks. This post has solely been assigned to give you clarity on patents and patent law in India.

What is a patent?

A patent is the exclusive right granted for an invention which either offers a new and original way of doing something, or provides a novel solution to an age-old problem. It could be granted over a process, a product, or both.

This right is granted to encourage innovators to make more inventions in the future, while also giving them the exclusive right to use, manufacture and promote their inventions. Once a patent owner has secured the work, he/she can decide who can and cannot commercially use, distribute, sell or import their invention during the protected period.

How are patents different from copyrights or trademarks?

Patents are generally granted for technological inventions such as unique software, nanotechnology and even wearable technology. This differs from a copyright, which is granted over literary, dramatic, musical and artistic works such as books, sound recordings and cinematographic films.

Patents also differs from trademarks, which allow a logo, word mark or device mark to be registered so that a consumer can easily identify a product or service. Trademarks are particularly important in the course of trade, as the mark associates a product or service with a certain quality and reputation.

Copyrights and trademarks have varying durations for which they offer protection, and different registration processes as well. A copyright is an automatic right, viz. the moment a work is created, it is copyrighted. However, when registered for legal purposes, a copyright is valid for the lifetime of the author plus another sixty years. A trademark is valid for a period of ten years and can be renewed indefinitely.

What are the prerequisites for an invention to be patented?

In India, the most lucrative market is the one dealing with innovation and technology. As such, there is a high demand for patent lawyers and a thirst to know how inventions can be protected.

The prerequisites for an invention to be patented are novelty, non-obviousness, industrial use, presence of an inventive step and whether the subject matter is patentable to begin with. To elaborate on this, the invention must be new and cannot already exist in the market, and the value added to the invention should be substantial.

There is also the requirement for the subject matter to be patentable. This is a significant condition because not everything is patentable. Discoveries of scientific principles, agricultural methods and business tactics are a few non-patentable subjects.

How does one get a patent in India and how long is it valid?

Although the patent registration process in India is simple in the sense that everything you need to know is available on the official website, the registration process is a very time-consuming affair.

In India, patents are governed by the Patents Act, 1970. To register a patent, you must first identify whether you need a provisional or nonprovisional patent application (more on this later). This can be filed either manually or online, but only one invention can be accommodated per application. In eighteen months, the patent will be published in the Patent Office Journal and a request to examine the patent must be made within four years.

The examination will be followed by suggestions to make amendments, and if the examiner accepts the application, the patent will be granted for a period of twenty years. Patents are non-renewable, which means they are valid and can be exploited only during the twenty-year period through licensing and sublicensing of the invention. A patent can also be registered internationally by a single application through the Patent Cooperation Treaty. This is valid for twenty years as well.

The distinction between a provisional and nonprovisional patent application lies in the fact that a provisional patent can be procured for a one-year period which not only gives the innovator the priority filing date and a ‘patent pending’ disclaimer, but it also gives them the extra time to experiment with their invention or to give it the finishing touches.

Are patents automatically bestowed upon the innovator like copyrights? What happens after the expiration of the patent term?

No, patents are not automatically bestowed. The innovator must actively apply for a patent to protect their invention from unauthorised exploitation. After the expiration of the twenty-year term, the invention goes into the public domain and people are free to use it commercially or otherwise.

A few important how-tos with respect to the patent filing process can be easily accessed on the official Indian patent website. There is a lot of information on how to file an online application, how to find other patents, and how to check your patent application status. There, you can even find the relevant forms and fees applicable to your invention.

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