Patent……..

Patent word Latin : “Patere” – “To Lay Open” (To make it available for public inspection) Patent is a grant from the government A guarantee for a limited period of time The required privilege for

Making Selling Using the invention

Sec 2 (1) (m) of Indian patent Act states that “Patent” means A patent for any invention granted under the Act.It is a set of exclusive right granted by state (National government)To an inventor or their assignee.

The first patenting related act in India was passed in 1911

by the name of “patent and design Act ,1911”. Later after Independence the patent bill was unsuccessfully

introduced before the parliament in 1949 & 1965 and

finally the bill was passed in the year 1970 and the act came into force on 20th April 1970 .

The patent system in India is governed by the “Patent Act 1970 (No.39 of 1970)” and the patent “Rules” 2003.

The patent act has been amended several times in 1974, 1985, 1999 ,2002 and in 2005 and the rules have been

amended in 2006.

History of Patenting in India

Why I go for getting a patent ???

To enjoy the exclusive right over the invention

To ensure commercial return

To protect my invention & proceedings

Patent Agent - Means a person for the time being registered under this act as a patent agent . Sec 2 (1)(n).

Patent Article & Patent process – Means respectively an

article or process in respect of which a patent is in

force . Sec 2 (1)(o). Patentee- Means the person for the time being entered on register as the

grantee or proprietor of the patent Sec 2(1)(p). Invention – Means a new product or process involving an inventing step and

capable of industrial application

Sec 2 (1)(j.)

(OR)

Invention is a creative process . An open and curious mind allows an inventor to see beyond what is known. Seeing a new possibility, connection, or relationship can spark an invention. Inventive thinking frequently involves combining concepts or elements from different realms that would not normally be put together. Sometimes inventors disregard the boundaries between distinctly separate territories or fields.

Related Term…

Why Patent is necessary ? …

To encourage research and development

Induces an inventor To disclose his Invention

Stimulate capitalInvestment affect Economy

Encourages technologies development

Encourages establishment of new industries

TRIPS requires that member countries of the WTO not having provision in their laws for granting product patents in respect of drugs and agrochemical, must introduce Exclusive Marketing Rights (EMR) for such products, if the following criteria are satisfied:

A patent application covering the new drug or agrochemical should have been filed in any of the WTO member countries after 1 January, 1995;

A patent on the product should have been obtained in any of the member countries (which provides for product patents in drugs and agrochemical) after 1 January 1995;

Marketing approvals for the product should have been obtained in any of the member countries;

EMR ( Exclusive Marketing Right )…

TRIPS- Trade Related Aspects of Intellectual Property Rights

A patent application covering the product should have been filed after 1 January 1995 in the country where the EMR is sought;

The applicant should apply seeking an EMR by making use of the prescribed form and paying requisite fee.

EMR is only a right for exclusive marketing of the product and is quite different from a patent right. It is valid up to a maximum period of 5 years or until the time the product patent laws come into effect.

Contd ……..

Patent is a technical as well as legal document that must

be drafted by an expert who is registered as patent agent

or patent attorney Main parts of patent are :

Title Field of invention Summary of invention detailed description of invention Claims Abstract Drawings if any

Anatomy of Patent ….

In order to be patentable , an invention must pass four test :

1. The invention must fall into one of five “statutory classes”: Processes Machine Manufactures composition of matter and, New uses of any of the above

2. The invention must be “useful”.

3. The invention must be “Novel”.

4. The invention must be “Non obvious”.

What can be patented ?…

A new product process ,involving an inventive step and capable of being made or used in an industry. It means the invention to be patentable should be technical in nature and should meet the following criteria .

i. Novelty : the matter disclosed in the specification is not published in India or elsewhere before the date of filling of the patent application in India.

ii. Inventive step : the invention is not obvious t a person skilled in the art in the light of the prior publication /Knowledge / document .

iii. Industrially applicable : Invention should possess utility ,so that it can be made or used in an industry

What are patentable Invention ?...

Discover of any living things or non living substances occurring in nature. A presentation of information . A method of agriculture or Horticulture .eg , the method of terrace farming

cannot be patented . Any process for medical, surgical, diagnostic, therapeutic or other

treatment of human beings . Plants and animals in whole or any part thereof other than microorganisms

but including seeds ,verities and species and essentially biological process for production and propagation of plants and animals.

What are non patentable invention ?...

Patent grant procedure

Filling of patent application

Early Publication Publication after 18 month

Request for examination

Pre Grant opposition /Representation by any person

Examination: Grant or Refusal

Publication of Grant of patent

Post Grant opposition to grant of patent (constitution of opposition Board)

Decision By Controller

An opposition of grant of patent is an administrative process available under the patent and trademark law of most jurisdictions which allows 3rd parties to dispute the validity of a granted patent or trademark.

There are two procedure of opposition :

1). Pre Grant Opposition –

Any person can file an opposition for grant of patent after the application has been published .

Opposition may be filed on any of the following grounds:

a) Non compliance of patentability requirements.

b) Non disclosure or wrongful disclosure of genetic resource s or traditional knowledge .

Opposition To Grant of Patent

2). Post-Grant opposition : Any person can file an opposition within a period twelve month after the grant of a patent .It can be filed based on the following grounds:

a) Wrongful obtainment of the invention by the inventor

b) Publication of the claimed invention before the priority date.

c) Sale or import of the invention before the priority date.

d) Public use or display of the invention .

e) The invention doesn't satisfy the patentability requirement.

f) Disclose of false information to patent office .

g) Nondisclosure or wrong disclosure of the biological source .

h) Invention is anticipated by traditional knowledge

Contd ….

3 ).Process of Opposition :

On receiving a notice of opposition , the controller notifies the patentee . He then constitute an opposition board to deal with the opposition .The opposition board decide the issues after giving reasonable opportunity to hearing both the parties .

The opposition board might invalidate the patent ,require amendments or maintain the status quality .If amendments are required ,they have to made within the prescribed period in order to maintain the patent

Contd…

Surrender of patent

 Surrender of patents:

(1)    A patentee may, at any time by giving notice in the prescribed manner to the Controller, offer to surrender his patent.(2)     Where such an offer is made, the Controller shall advertise the offer in the prescribed manner, and also notify every person other than the patentee whose name appears in the register as having an interest in the patent.(3)     Any person interested may, within the prescribed period after such advertisement, give notice to the Controller of opposition to the surrender, and where any such notice is given the Controller shall notify the patentee.(4)     If the Controller is satisfied after hearing the patentee and any opponent, if desirous of being heard, that the patent may properly be surrendered, he may accept the offer and, by order, revoke the patent

Patent infringement : Patent infringement is the commission of a prohibited act with respect to

a patented invention without permission from the patent holder.

The definition of patent infringement may vary by jurisdiction, but it

typically includes using or selling the patented invention. 

Infringement of patent

1) Direct patent infringement:-

Direct patent infringement is the most obvious and the most common form of patent infringement. ,i.e. anyone who makes, uses or sells the patented invention.

2) Indirect patent infringement :-

It is an action or an activity by a third party encouraging another to make, use or sell the invention.

Types of Patent Infringement

The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations.

The WTO agreements, are negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments.

The goal is to help producers of goods and services, exporters, and importers conduct their business.

WTO….

The grant and enforcement of patents are governed by national laws and international treaties.

There is a trend towards global harmonization of patent laws and the WTO is actively participating in this area.

The TRIPS [ Trade Related Intellectual Property Rights] agreement has been successful in providing a forum for nations to agree on an aligned set of patent laws.

WTO and patent rules:

Thank you Any