Intellectual property relates to the creations of the mind. Such creations may be artistic in the form of literature, painting, designs or other artworks or in the form of an invention.
It refers to anything that is a product of human intelligence, including that which is scientific and technical in nature. Patents are granted to afford statutory protection to the inventors with respect to their inventions by granting certain exclusive rights for the same.
The government recognizes the invention to be either a process or a product which is dignified as an important source of scientific and technical literature. Patent rights are critical in order to prevent third parties from unauthorized manufacturing or using it by way of offering for sale, selling, importing, distributing or licensing.
A Patent is a type of Intellectual Property that is granted to an inventor of a new product or process giving him the exclusive right to use the invention and reap the fruits of the same by selling, distributing or licensing the same.
The law of Patents in India incorporated in The Patents Act, 1870 when on one hand encourages the inventions by the people by granting exclusive rights, also on the other hand ensures that the same is used in the public interest and for public welfare.
Inventors can choose to file a patent by themselves or seek help from a patent filing professional or agency. What is highly advised for the inventor is to not disclose the invention on any public forums prior to filing for the patent.
They can also check the patentability of their invention to ensure another individual has not filed a patent for a similar technology and understand the chances of availing the patent by the end.
The Patent Amendment Rules (2016) makes it mandatory for e-filing of the applications for the grant of a patent which can be done at Patents | Intellectual Property India | Government of India (ipindia.gov.in).
The application should include all the details of the applicant along with the information about the invention which includes, specifications, corresponding applications filed in other countries, etc. Upon receiving the application, the IPO then provides an application number and accords a date of filing.
After filing of the application, the IPO will publish the same in the official Patent Journal approximately 18 months after the date of filing, for public inspection. Expediting the patent application publication is also possible by filing a request for an early publication.
This is achieved by filling Form 9 following which, the IPO will generally publish the application within one month from the date of request for publication.
Publication of Patent applications may be withheld for the reasons of incomplete applications, withdrawal requests by applicants or in the event the invention is of such nature and secrecy direction has been issued by the Controller of Patents in accordance with the provisions of Patent Acts, 1970.
After the publication of the application, the applicant is given the privileges and rights of a granted patentee. Even though they can only file an infringement suit after the patent has been ultimately granted, applicants can claim the damages from the date of the publication of the application.
Stage 3: Examination
The applicant must then request (Form 18) for an examination and submit the prescribed fee after the patent application is filed and published. Only then, the IPO extensively examines the patent based on the merits of the invention and the descriptions on the patent specification form.
This request can be filed any time within 48 months from the date of filing or the date of priority. The applicant can also expedite this process by applying to Form 18 (A).
A request for examination cannot be filed after the due date and the application is terminated if it is. The examination of the patent is carried out to ensure that it aligns with all the requirements of the Patents Act, 1970.
Grant of Patent
If the examiner finds no objection in the application, the patent is granted and published in the official gazette up to a period of one year for inviting any opposition to the same.
Once the above stages have been completed and the patent is granted, its term extends for a period of 20 years from the date of the filing of the application
The grant of patent provides the inventor of the patent with exclusive rights that prevent others from creating, selling, using, importing the invention without his prior consent.
Consequently, patents pave the way for development, innovation, technology, and scientific discovery along with identifying new emerging technologies and advancing areas.