The government grants a Patent for an invention being novel, non-obvious and useful in industrial application. It lasts for a period of 14 years and after the expiry of the period, the invention enters the public domain. It is a territorial right however one can apply for convention application. No third party can make, distribute or sell the registered invention. Patent Registration in India plays an important role in protection from exploitation of new ideas and invention. However, there is a restriction on patents or what can be or cannot be patented.
- It is an exclusive right approved by the government to the inventor of a product for his invention for a limited time period. This right excludes others from making, processing, producing using, selling, and importing the product or process, without his consent.
- It covers all the invention related to a product or process that is new, innovative involving unique, distinctive, innovative steps and has the industrial application.
Important points about Patents
A patent has territorial limitation i.e. it provides protection of right in the particular country where the patent has been filed or register. So, the patent in India will not protect the creator to exercise his rights outside India. There is no protection of the patent worldwide.
- If an inventor intends to obtain the worldwide right to a patent over his product or process, then the separate application needs to be filed in different countries within 12 months from the date of filing in India. Hence, separate patent required from each country to protect his invention from duplication.
- Application for Patent can be filed either by the first inventor or his assignee, either alone or jointly with any other person.
- A patent application should be filed before publically disclosing the invention. If it is disclosed before filing for Patent, the basic objective of the patent will be destroyed and all will be in vain.
- In India, a patent for a product is granted for 20 years from the date of filing a patent application.
Patents in India
The first and foremost feature of any patent is its:
- Novelty/Uniqueness– There must not be a previous claim for it anywhere in India. It shall be unique in a way different from prior art. An invention is a novel, if prior to the date of filing, the invention was not in existence either orally, writing or through use.
- Non-obviousness– it must not be predictable to the society. Known techniques used to create ideas give out predictable results.
- Industrial application– it must be used for the industrial purpose. Grant of the patent is not for illegal and immoral purposes.
Inventions relating to process or methods of tangible and non-living substances by bioconversion or using such microorganism are patentable in India.
Some discoveries are not patentable. Individual or any other than small entity can ask for a patent which related to the field of law of nature or a scientific nature.
Under European patent convention, patents are granted only for ideas that are new, involve an inventive step and capable of industrial application. In India, the invention must relate to some machinery, article or substance produced by manufacturing or a substance for manufacturing.
Restriction on Patents in India
Under European Patent Convention, an idea is non-patentable if it includes methods of medical treatment or diagnosis, a new plant or animal varieties.
Under Indian law, Section 3 and 5, Patents Act, 1970 provides a list of inventions outside the scope of granting the patent.
- An idea that is frivolous or which claims anything contrary to the established natural laws. An invention, the primary or intended use of which would be contrary to law or injurious to public health.
- A substance obtained by merely mixing, resulting in aggregation of properties of the components thereof or a process for producing such substance. The mere arrangement or re-arrangement or duplication of known devices cannot be patented.
- Any process for the medicinal, surgical, curative or other treatment of human being or any process for similar treatment of any animal or plant to render them free from disease.
- Any process relating to agriculture and horticulture.
- Grants are not given for patents relating to Atomic energy. e.g. inventions relating to uranium, beryllium, thorium, radium, graphite, lithium and more as specified by Central Government.
- The topography of integrated circuits cannot be patented in India.
- Gambling machine cannot be patented.