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1. Why should one patent one's invention?


To enjoy exclusive rights over the invention. If the inventor does not obtain patent rights for the invention and introduces the product/process based on the invention in the market, anybody can copy the invention and exploit it commercially. To debar others from using, selling, offering for sale or manufacturing the invention, the inventor must obtain a patent. The inventor can either exploit the patented invention himself/herself or can sell or license it to others for profit.



2. What are the required criteria in order for a patent to be granted?


An invention must meet the following three criteria to be eligible for grant of patent:

i) Novelty

ii) Inventiveness (Non-obviousness)

iii) Usefulness

Novelty: An invention will be considered novel if,

i) It does not form a part of the state of the art or has not been described orally,

ii) It has not been published or used before the date of filing the patent application.

Inventiveness (Non-obviousness): A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent.

Usefulness: An invention must possess utility for the grant of a patent. No valid patent can be granted for an invention devoid of utility.



3. What is patentable?


The following kinds of inventions are patentable:

a) Process, method or manner of manufacture

b) Machines, apparatus or a product

c) Substances produced by a manufacturing process, including any new and useful improvements of a patented product/process.

Inventions claiming substances intended for use or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi conductors and inter-metallic compounds) are now patentable after January 1, 2005.



4. What is not patentable?


i) An invention that is frivolous or that claims anything obviously contrary to well established natural laws e.g. different types of perpetual motion machines.

ii) An invention, the primary or intended use of which would be contrary to law or morality or injurious to public health e.g. a process for the preparation of a beverage which involves the use of a carcinogenic substance, although the beverage may have higher nourishment value.

iii) The mere discovery of a scientific principle or formulation of an abstract theory. e.g. Raman effect

iv) The mere discovery of any new property or mere new use of a known substance or the use of such known process, machine or apparatus; unless such known use results in a new product or employs at least one new reactant.

v) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.

vi) The mere arrangement or rearrangement or duplication of features of known devices each functioning independently of one another in a known way.

vii) A method of agriculture or horticulture.

viii) Any process for medical, surgical, curative, prophylactic or other treatment of human beings or any process of similar treatment of animals.

ix) Inventions relating to atomic energy.



5. When should an application for a patent be filed?


Filing of an application for a patent should be completed at the earliest possible date and should not be delayed until the invention is fully developed for commercial working. A provisional application can be filed with a brief synopsis disclosing the essence or the nature of the invention.



6. Can a published or disclosed invention be patented?


No. Publication or disclosure of the invention anywhere by the inventor before filing of a patent application would disqualify the invention from being patentable. Hence inventors should not disclose their inventions before filing of the patent application. When disclosing, the number and the date of the patent application should be given by way of information to the public.



7. What is considered as the date of a patent?


The date of a patent is the priority date, which is when the first application (provisional/complete/PCT) is filed disclosing the invention. The term of the patent is counted from this date of application. However, the date of publication is also important because it is from this date that legal protection of the invention disclosed in the patent takes effect.



8. What is the term of a patent?


In India, the term of a patent is 20 years from the date of application.



9. How does a patent expire?


A patent can expire in the following ways:

1. The patent has lived its full term i.e. the term specified by the patent Act of the country.

2. The patentee fails to pay the renewal fee. A patent once granted by the Government has to be maintained by paying an annual renewal fee.

3. The validity of the patent has been successfully challenged by an opponent by filing an opposition.

4. The patent is revoked.



10. To what extent does an inventor have to disclose his/her invention in order to obtain a patent?


An inventor has to disclose his/her invention in such a manner that any person, other than the inventor, skilled in the art should be able to work the invention.



11. Is there an international/global patent?


No. There is no international or global Patent. An inventor has to file an application in each country, where he/she seeks protection for his/her invention. There are regional and/or international treaties to facilitate the procedure such as the Patent Co-operation Treaty (PCT) or the European Patent Convention (EPC).



12. How does a patent document help in R&D?


Study of patent documents may prevent reinvention of the wheel. An individual who has not consulted existing patent literature may start working on a problem for which the solution already exists.



13. What is the nature of information needed while consulting a patent attorney?


1) An explanation of the history of the invention, where you got the idea from, how you developed it, any early failures and the possible prototypes, all your laboratory note books if possible, etc. This will help the patent attorney to explain the inventive step which is necessary for obtaining the patent. It also increases his or her understanding of the invention so as to maximise the skill with which he or she can draft claims and specifications.

2) What you think is the most inventive element or the most useful aspect, together with other similar prior inventions you know of or from where you have developed or improved upon the idea. If you have developed an improved version of your competitor's products, admit it; be totally honest. This is vital so that the patent agent can describe your invention properly while drafting the application and avoid excessive claims which might be struck down.

3) Drawings if any, which may illustrate the invention should be attached.



14. Who is responsible for ensuring that a patent has not been infringed?


It is the sole duty/responsibility of the patentee to see that his/her patent is not being infringed upon by someone else. It is the patentee's duty to file a suit of infringement against the infringer.



15. Does a patentee get remuneration once a patent has been granted to him/her?


No. A patentee does not get any remuneration on the grant of the patent. However, a patentee can sell his/her patented invention to a third party for financial gains. The patentee has all the rights to sell his/her invention exclusively or non-exclusively to any person/party, or he/she may choose to license his/her invention for a royalty. The granting authority will not give any money to the patentee. Rather the inventor has to spend money for annual maintenance of the patent.



16. How can one patent a Trade Mark?


You cannot get a patent for a Trade Mark. A patent can be obtained only for a scientific invention i.e. a product or a process that is novel, non-obvious to a person skilled in the art and having an industrial application.