Guide to Patents in India
What is a Patent?
A patent is a government granted, exclusive right over an invention for a limited time. In India, a patent gives the owner also known as the “patentee” the right to stop others from making, using, selling or importing the patented product or process without permission. In return, the inventor must fully disclose the invention to the public. Patents protect technical inventions, typically a new machine, product, composition of matter or a new process, that is novel, non-obvious (inventive), and industrially useful. The patent term is 20 years from the filing date (20 years from the PCT filing date for international applications). Patents are territorial rights, so an Indian patent only protects the invention within India.
What Is Patentable?
Under the Patents Act, 1970 under Section 2 (j) an “invention” means a new product or process involving an inventive step and capable of industrial application. In practice, this means the invention must be:
- Novel: not known or used in the public before the filing date.
- Inventive (non-obvious): more than a trivial change to existing knowledge.
- Industrially applicable: useful and capable of being made or used in some industry.
The invention can be either a product for e.g. a new chemical compound or device or a process for e.g. a new manufacturing method. However, certain things are not patentable under Sections 3 and 4 of the Act. For example:
- Scientific principles or abstract theories and discoveries of natural substances: the mere discovery of a scientific principle or an existing living or non-living thing in nature is not an invention.
- New form or use of known substances without improved efficacy: simply finding a new use for a known drug or a new crystal form of a known chemical (with no real benefit) is also excluded.
- Mere mixtures or arrangements of known devices: simply combining known components in an obvious way is not patentable.
- Methods of agriculture or horticulture, and methods of medical treatment (e.g. a surgical procedure) are also non-patentable.
- Mathematical methods, business methods, and computer programs per se are excluded (Section 3(k)).
In summary, only concrete technical inventions can be patented. If an idea falls into one of the excluded categories, it cannot be patented.
Inventor and Applicant
The inventor is the actual person who created the invention. In India Patent Act uses the term “true and first inventor” to mean the person who first made the invention. By law, this definition excludes someone who merely imported the invention into India or to whom it was first shown from outside as defined under Section 2 (y) of the Act. In practice, only natural persons can be inventors, therefore, a company itself cannot be named as inventor.
Who can apply for a patent – Under Section 6 of the Patents Act the application may be filed by: (a) the true and first inventor, (b) the inventor’s assignee (someone who received the inventor’s rights) or (c) the legal representative of a deceased inventor. In plain terms, that means the inventor or anyone who legally owns the invention can apply.
Furthermore, while a company cannot itself be the inventor but a company can be the applicant or patentee if the inventor has transferred the rights. For example, if an inventor is employed by a firm and assigns the invention to the firm, then the firm (a legal “person” under the law) can file the patent application as assignee. In short, companies can own patents: the patent is granted to whomever is listed on the patent register as the proprietor the “patentee”.
Rights of the Patentee
Once a patent is granted, the patentee enjoys exclusive rights under Section 48 of the Patents Act. Specifically:
- For a product patent: The patentee can prevent others from making, using, selling, offering for sale or importing that product without permission.
- For a process patent: The patentee can prevent others from using the process, and from using, selling or importing any product directly obtained by that process.
In effect, no one else may commercially exploit the patented invention in India without the patentee’s consent. If someone does infringes, the patentee has the right to file suit for relief (usually an injunction to stop the infringement and damages). Patent enforcement is done through the civil courts.
The Act also includes provisions for compulsory licensing (granting limited permission to others under certain conditions) and government use in national emergencies, but these are special cases. Normally, the patent gives the owner a strong monopoly right in India.
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