(i) Ordinary patent (ii) Patent for addition (iii) Patent granted under convention agreement
Types of Patents
(i) Ordinary patent: It is granted on an
ordinary application made.
(ii) Patent for addition : It is secured for an improvement or
modification to granted patent. It remains in force till the original patent is
valid.
(iii) Patent granted under convention agreement : It is based on an
application made in a Convention Country notified under Section 133 of the Act.
The convention application has to be made within 12 months from the date of the
first application.
It is now possible to
secure patent protection for new products and the processes of preparation in
Science & Technology and also
for a new hardware.
The
main criteria for securing patents are:
(i) The invention must be new.
(ii) It should involve inventive step.
(iii)
The invention must be industrially applicable and useful to the society.
Eventhough,
product-patent is the key factor in post-WTO era, it does not prevent a person
to get a patent for developing alternate and commercially viable new processes
for the new product. The alternate and commercially viable process developed
can not be commercially used without getting the permission ofthe valid product
patent holder.
In
accordance with amendment in 2002 to Section 33, the term of patent is 20 years
and shall also be applicable to those patents granted under The Patents Act,
1970 from the date of amendment.
The Head Quarter of
Patent Office is in Kolkatta with its branches in Mumbai, Delhi and Chennai.
The Nodal Ministry is Ministry ofCommerce and Industry, Department of Industrial
Policy and Promotion, Government ofIndia, Udyog Bhavan, New Delhi.
The application
filed in the prescribed forms along with the prescribed fees accompanied by
Provisional is required to be made by inventor or his legal representative to
the officer-in-charge of patent office. The provisional Specifications describe
essential features of invention whereas, Complete Specifications include full
description, statement, detailed method, scope, utility, etc. The Complete
Specifications should be produced within 12 months of filing of Provisional
Specification. No extension beyond this period is possible in case of
applications filed on or after 1-1-2005.
The
Patent Office refers the contents of Complete Specification to scientific adviser
or examiner for scrutiny. Examiner's report is obtained within 18 months either
to accept or modify or reject. The new amendment introduced is the facility for
with-drawing the application before publication on the expiry of 18 months from
the date of filing.
The Controller
General of Patents, in case of acceptance, notifies and advertises in Official
Gazette. Any objection for publication of patent from public should be received
within one year from the date of publication of grant of patent (Notice of
Opposition). The opportunity is given to hear and interact and only on
satisfying all conditions, the Patent is granted with seal of office and entry
of date of sealing in register.
The
documents required in duplicate for filing an application for patent in India
are as follows:
(i) Application Form 1 suitably modified.
(ii) Provisional
Certification (Form 2) or Complete Specification (Form 2).
(iii) Abstract of invention.
(iv) Any drawings, if necessary.
(v) Statement and Undertaking (Form 3)
(vi) Prescribed fees.
Development and
process for the preparation of new compounds, new materials, new formulations
or synergistic compositions; improvement of an existing process for production
of known compounds, known compositions and known materials; development of new
medical kit, new machine/device, new hardware incorporating a software and
improved machine device are patentable.
The
patents are categorized under the National Patent Systems of every country as well
as under an International Patent Classification System (IPC). The IPC system of
classification categorizes the entire Science and Technology into 8 main
headings, each heading is further classified into about 95000 sub-headings.
The
rights of the patentee are defined in Section 48 of the Act. The grant of a
product patent prevents a person in commercially utilizing the process he has
developed for the preparation of the product patent holder. The patent holders
for respective invention can come together and enter into joint agreement for
mutual benefits, if the alternate process developed has significant commercial
utility.
The
Patentee has an exclusive right to make use ofthe patent within the period of
patent, sell or distribute such an article. He has right to prevent third
parties who do not have his consent from the act of using that process.
For Government use
under special provisions there is no restriction for importing or making use of
provision. The patent is required to be surrendered if complaint is made and
upheld by the order of High Court.
When
the legal rights in a valid patent are commercially exploited without the
permission of the patentee, it amounts to infringement of patent.
The
relief, which a court may grant in any suit for infringement includes an
injunction and at the option of the plaintiff either damages or an account of
profits.
·
The legal rights in Intellectual Property secured (except
for Copy Right) in one country can not be enforced in another country.
·
For availing the benefits of the Patent Cooperation Treaty
(PCT) Rules, a single application (International Application) has been made in
respect of designated member countries of PCT, where protection is desired.
Afterwards the applicant, however, has to make corresponding applications in
the member countries of PCT.
·
The amendments effected have a provision for establishment
of an "Appeal Board", the qualifications for the members of the Board
which shall look into IP disputes and provide speedy, timely and inexpensive
disposal of appeals.
·
"Protection of National Security" clause has been
inserted whereby, the Central Government can take any action including
revocation of a patent in the interest of the security of India by issuing
notification in the Official Gazettt: to that effect.
The Patent Amendment
2005 covering product protection has provided an opportunity for domestic
players to invest in R&D and bring out successful drugs at a greatly
reduced cost.
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