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Patent Application and Registration in India

Updated: Mar 27

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government. The patent system in India is governed by the Patents Act, 1970. This act lays down the definition and procedures for the applying of patents.It is issued in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.

In terms of time period every patent is granted for 20 years from the date of filing of application. However, for application filed under national phase under Patent Cooperation Treaty (PCT), the term of patent will be 20 years from the international filing date accorded under PCT. An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act.


An invention which has been either published or publicly displayed cannot be patented as such publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organised by the Government or disclosure before any learned society or published by applicant.


Once an application for filing the patent has been made, the application shall be published for public inspection by 18 months from date of filing or priority date. The advantage of publication of a patent application is that it provides rights and privileges as if a patent is granted.



Landmark cases regards to Patents Act, 1970: Novartis AG v. Union of India (2013): Section 3(d) - Patentability Criteria: This case centered around the interpretation of Section 3(d) of the Patents Act, which deals with the criteria for patentability. The Supreme Court of India upheld the rejection of Novartis' patent application for the cancer drug Glivec, ruling that the drug did not meet the criteria of patentability under Section 3(d). This section specifies that mere incremental improvements or modifications of known substances may not be considered patentable unless they result in significantly enhanced efficacy.


Bayer Corporation v. Union of India (2012): Section 84 - Compulsory Licensing: This case involved the grant of a compulsory license under Section 84 of the Patents Act. The Indian Patent Office granted a compulsory license to Natco Pharma for Bayer's cancer drug Sorafenib Tosylate, allowing Natco Pharma to manufacture and sell a generic version of the drug at a lower price. Section 84 allows for the grant of compulsory licenses in certain circumstances, such as when the patented invention is not available to the public at a reasonable price or is not worked in India.

Roche v. Cipla (2009): Section 48 - Rights of Patentees: This case dealt with the infringement of Roche's patent rights by Cipla. Roche claimed that Cipla infringed its patent for the cancer drug Erlotinib Hydrochloride. The Delhi High Court ruled in favor of Roche, granting an injunction against Cipla for infringing Roche's patent rights. Section 48 of the Patents Act confers upon patentees the exclusive right to prevent others from making, using, selling, or importing the patented invention without their consent. Ericsson v. Micromax (2013): Section 64 - Revocation of Patents: In this case, Ericsson filed a patent infringement suit against Micromax for infringing its standard essential patents related to telecommunications technology. The Delhi High Court ruled in favor of Ericsson, granting an interim injunction against Micromax for infringing Ericsson's patents. Section 64 of the Patents Act specifies the grounds on which a patent may be revoked, including non-compliance with the Act, failure to disclose information, or non-working of the patented invention in India. Frequently Asked Questions about Patents in India:


  1. What is the difference between a patent, copyright, and trademark? A patent protects inventions or discoveries, a copyright protects original works of authorship, and a trademark protects symbols, names, or slogans used to identify goods or services.

  2. How long does it take to obtain a patent in India? The time taken to obtain a patent in India can vary, but typically it takes around 3-5 years from the date of filing the application to receive a patent grant.

  3. Can I patent software or business methods in India? Yes, software and business methods can be patented in India if they meet the criteria of being novel, involving an inventive step, and being capable of industrial application.

  4. What are the costs associated with filing a patent application in India? The costs associated with filing a patent application in India include government filing fees, attorney fees, and any additional costs related to patent searches, drafting, and prosecution.

  5. What happens if someone infringes on my patent rights? If someone infringes on your patent rights, you can take legal action against them, which may include seeking injunctive relief, damages, or royalties through civil litigation or infringement proceedings.

  6. Do I need a patent attorney to file a patent application in India? While it is not mandatory to hire a patent attorney, it is highly recommended to seek assistance from a qualified patent attorney or agent who can navigate the complex patent application process and ensure the best possible protection for your invention.

  7. Can I file a patent application as an individual inventor or does it have to be filed by a company? Both individual inventors and companies can file patent applications in India. The applicant may be an individual, a group of individuals, or a legal entity such as a company or organization.

  8. What are the requirements for filing a provisional patent application in India? To file a provisional patent application in India, the applicant must provide a written description of the invention along with any drawings, if necessary. The application must also include a provisional specification outlining the nature of the invention.

  9. Are there any tax benefits or incentives available for patented inventions in India? Yes, Section 115BBF provides concessional rate of taxation at 10% on royalty income in respect of exploitation of patents

  10. What happens to my patent rights after the expiration of the patent term? After the expiration of the patent term, the invention enters the public domain, and anyone can freely use, make, or sell the patented invention without infringing on any patent rights.

 





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