A patent is termed as the exclusionary rights given by the government or the authorized authority to its inventor for a particular duration of time, in respect of his invention. It is the part of the intellectual property right, which connotes with all those rights which are granted to any person for protecting its invention, process, discovery, composition or new useful development etc. from its further usage without any authentication. If more than two persons have jointly applied for patent license, both will own the patent separately. India under the contractual obligation to amend its Patents Act. The Patents Act lays down the provisions for filing of application for product patent in the field of drugs or medicines with effect from 01.01.1995 and grant of Exclusive Marketing Rights on those products.
Further, amendment was made in the Indian Patents Act again in 2002 to meet with the second set of obligations (Term of Patent etc.), which had to be effected from 1-1-2000. This amendment, which provides for 20 years term for the patent, Reversal of burden of proof etc. came into force on 20th May, 2003. The Third Amendment of the Patents Act 1970, by way of the Patents (Amendment) Ordinance 2004 came into force on 1st January, 2005 incorporating the provisions for granting product patent in all fields of Technology including chemicals, food, drugs & agrochemicals and this Ordinance is replaced by the Patents (Amendment) Act 2005 which is in force now having effect from 1-1-2005 .
The criteria for an invention to be patentable are,
(1) An invention must be novel
(2) has an inventive step and
(3) is capable of industrial application
To be patentable, an invention should fall within the scope of patentable subject matter as defined by the patent statute. The invention must relate to a machine, article or substance produced by manufacture, or the process of manufacture of an article. A patent may also be obtained for an improvement of an article or of a process of manufacture. With regard to medicine or drug and certain classes of chemicals no patent is granted for the product itself even if new, only the process of manufacturing the substance is patentable. However, product patents would be available for drugs and food materials from 2005 as India’s obligations under the TRIPs Agreement would kick in from that point of time. If any substance falls outside the scope of patentable subject matter, it cannot be patentable.
The Patent law of India has the following salient features that decide whether a patent will be granted or not:
(a) The object: The object of patent law is to encourage scientific research, new technology and industrial progress. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period of the monopoly, passes into the public domain.
(b) Inventive step: The fundamental principle of Patent law is that a patent is granted only for an invention, which must be NOVEL and INNOVATIVE.
An application for a patent can be filed by the true and first inventor. It can also be filed the by the assignee or legal representative of the inventor. If an application is filed by the assignee, proof of assignment has to be submitted along with the application. The applicant can be national of any country.
Every application shall be accompanied by a provisional or complete specification. Provisional applications are generally filed at a stage where some experimentation is required to perfect the invention.
Filing of a provisional specification allows the applicant to get an early application date.
If the application satisfies all the requirements of the patent act, the application is said to be in order for grant. A granted patent shall be published in the official gazette and shall be open for public inspection. Every granted patent shall be given the filing date. The patent will be valid throughout India. A granted patent confers the exclusive right on the patentee to make, distribute or sell the invention in India. An infringement would be when any of three rights is violated. A patentee may assign license all or some of these rights. The exercise of the rights so transferred in favour of the assignee or the licensee by the assignor or the licensor would not amount to infringement of the patents.
Whenever the monopoly rights of the patentee are violated, his rights are secured again by the Act through judicial intervention. The patentee has to institute a suit for infringement. The relief’s which may be awarded in such a suit are -
(1) Interlocutory/ interim injunction.
(2) Damages or account of profits.
(3) Permanent injunction.
Our services in patent matters include as follows :
Preparing and filing patent applications and obtaining Indian patents.
Computer patents annuities services.
Opinions on patent validity and infringement.
Enforcing patents against infringement.
Defending clients against infringement charges by others, as well as representing clients in disputes resolution through either legal proceedings or negotiations.
Technical knowledge transfer.