Intellectual property rights are those that individuals are granted over their original works of art, according to the World Trade Organization. Similar to copyright, trademark, and design rights, patents are a type of intellectual property. A patent grants sole ownership of such creations for a predetermined amount of time. The Patents Act, 1970, which lists provisions pertaining to every aspect of patents in India, including the processes for submitting patent applications, governs patents in that country.
Who may submit a patent application?
The people who may submit a patent application are listed in Section 6 of the Act. Every person who can prove they are an invention's original and authentic creator may submit an application for a patent at the patent office. But an assignee of the original and real inventor of the invention may receive a transfer of such a right to submit an application. In this situation, the application must be supported by a declaration that the applicant is the original and true creator of the invention and a proof of application right. A legal representative of a dead person who was entitled to a patent before his death may also submit a patent application.
Patent Application Types
There are four different categories of patent applications:
Provisional Application: This application is submitted when the inventor is still working on perfecting his invention and wants extra time to do so without losing the priority date. The entire application must be submitted after the provisional application has been filed, else the patent application will not be taken into consideration. It's possible that the provisional certificate made a claim.
Full Application: The invention is complete if a complete application is filed. The entire application contains claims.
Divisional Application: If the innovation does not entail a significant amount of inventive step, but the applicant considers that it is a modest modification of the invention for which he has already applied for or won the patent, he may apply for a patent of addition. Throughout the primary patent's life, there is no need to pay a separate renewal fee for the extra patent, and both expire at the same time.
Patent of Addition: When an applicant submits an application that claims more than one innovation, the applicant on his or her own must submit two or more applications, one for each invention. A divisional application is this kind of application that is split off from the parent application. Any divisional applications will have the same priority date as that asserted by the parent application.
Types of patent application
The application for a patent must be submitted to the Patent Office in the required form, as per Section 7 of the Act. A provisional or complete specification must be submitted with every patent application. In the case of a convention application or an application submitted in accordance with the Patent Cooperation Treaty, such a provisional or comprehensive specification need not be submitted.
If the applicant provided provisional specifications with the application, he must submit a complete specification within 12 months of the application's filing date; otherwise, the application risked being abandoned. A single comprehensive specification may be filed in relation to all of the innovations in the event that two or more applications are filed addressing related inventions and they can all be covered by a single patent. The preliminary specification is cancelled after providing the complete specification, and the application is then post-dated to the date the complete specification was filed.
Application of Convention
Once a convention application is submitted, the following documentation must be included:
- The entire specification;
- the date and convention nation where the application was made, or the first application if there were two or more applications.
- a declaration claiming that neither the applicant nor any other party from whom he derives the title has filed an application in any convention country prior to that date.
A convention application may additionally comprise the following in addition to the previously mentioned:
- any specifications or relevant documentation filed or deposited by the applicant with the patent office of the convention nation outside of the entire specification within the time frame stipulated by the Controller;
- a translation of the document, if it is in a foreign language, and an affidavit, if the Controller so requests;
- a statement attesting to the date the application was submitted in the convention country and signed by the official chief or the head of the patent office of the country.
Indian patent application filing
The completed patent application must be submitted to the Indian Patent Office together with the necessary filing fee. You can submit the application offline or online. A receipt for the acknowledgement of the application will be sent by the patent office. There are several application forms that must be filed with the patent application, including:
Form 1: Request for the issuance of a patent
Form 2: Definition of the application's format, including whether it is final or provisional
Form 3: If a matching application is also submitted in another country, an undertaking and statement on foreign applications must be provided in accordance with Section 83.
Form 5: The invention's declaration and a thorough description of how it will be used
Form 26: If a patent applicant chooses to use a filing agency, a form authorising the agent must be submitted.
Only if the applicant claims to be a small firm or a start-up, Form 28 is required.
The patent application's publication
A patent application is published in the official patent journal after it is submitted to the Indian Patent Office. That typically occurs 18 months after the application was submitted. The applicant must make a request for early publication in accordance with Form 9 if he wants to request early publication. When an application is incomplete, the applicant requests a withdrawal, or there is a direction of confidentiality under the Patents Act, publishing may be restricted under specific circumstances. The public will be able to read the application through this publication and express any concerns or opposition.
The patent application is examined
Prior to issuing a patent, each request for patent protection is examined. The candidate must submit Form 18 to request an examination. The patent officer reviews the application after it has been submitted to ensure that it complies with Indian patent rules and guidelines. The officer performs a thorough investigation by examining the pertinent inventions, and if any objections are raised, they are thoroughly listed in a report known as the First Examination Report (FER). The applicant must revise the application if there are objections, for which they can submit Form 4 to request an extension.
The Patent Office will award the patent and publish it in the Patent Office Journal if the application is judged to be in order and all objections have been resolved. A patent grants the owner the only authority to use, make, sell, or import the invention in India for a period of 20 years starting on the date the patent application was submitted.
Reviewing of a Patent
A yearly cost for patent renewal must be paid by the patent holder each year. 20 years from the application date for the grant of the patent is the maximum number of years for which a holder may renew the patent.
Innovative technologies that have streamlined human existence have multiplied enormously as a result of globalisation and technological improvement. The procedure of applying for a patent is essential to safeguarding such inventions. It enables innovators to safeguard their creations and make money from its commercialization, fostering innovation and advancing the economy. An invention's compliance with Indian patentability requirements, such as novelty, non-obviousness, and industrial applicability, is ensured through the patent registration process. It encourages inventors to fund R&D, which can result in technological development and general economic growth. Inventors must comprehend the patent application process and enlist the help of knowledgeable patent attorneys in order to comply with it appropriately.
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"