Patent: Application, Publication, And Examination

 Adeeba Khan

A Patent is a form of intellectual property that gives its owner an exclusive legal right for a limited period of 20 years from the date of filing the application in exchange for a comprehensive public disclosure of the invention.[1]

The Patent system is designed to encourage inventions that are unique and useful to the public domain.

A Patent provides its inventor an exclusive right to the patented process, design, or invention.

A Patent will only be granted for an invention if it qualifies for a patent.

For an invention to qualify for a patent:

1. It should be “Novel” and “Non-Obvious” which means it must be different or unique from other similar inventions.[2]
2. Must not have been publicly used, sold, or patented by another inventor.
3. It must be useful to the public.
4. It should have a legal purpose and is safe for the public to use.

Contents  hide 

1 Types of Patents

2 Application For Patent

2.1 Persons Entitled To Apply For Patents

2.2 Form Of Patent Application

3 Provisional And Complete Specification

3.1 Provisional

3.2 Complete

3.3 Contents Of Specification

4 Priority Dates

5 Publication of Patent

6 Examination of Patent

7 Reference

7.1 Related

Types of Patents

There are three types of patents:

1. Utility Patent: granted to new machines, chemicals, and processes.
2. Design Patent: granted to the uniqueness of manufacture of the object or overall design of the object.
3. Plant Patent: granted for the asexual reproduction of new distinct plant varieties, meaning, the plant can be reproduced by other than seeds, such as by rooting or cutting.

Application For Patent

Persons Entitled To Apply For Patents

1. Any person who claims to be the first and true owner of the invention;
2. Any person being the assignee of the person claiming to be the first and true owner of the inventor;
3. The legal representative of a decease person who immediately before his was entitle to make such an application.

Form Of Patent Application

1. Every application should be for one invention only.
2. The application should be made in the prescribed form and filed in the patent office.
3. Application must state that the applicant is in possession of the invention and the application shall contain a declaration that the applicant believes the person so named to be the true and first owner.
4. The application shall be accompanied by a provisional or complete specification.

Provisional And Complete Specification

Provisional

1. Provides a general description of the invention.
2. It should submitted along with the patent application.
3. It can cancel anytime before the grant of the patent, by the controller, when a complete specification has filed by an applicant, and post-date the application to the date of filing of the complete specification.

Complete

1. It provides full and complete details of the invention.
2. It must be filed within twelve months from the date of filing the patent application, if the applicant is fail to do so, the application will deemed cancel.
3. Where a complete specification accompanying the patent application has been filed, the controller may treat it as a provisional specification within twelve months, at the request of the applicant.

Contents Of Specification

1. They must contain a title that specifies the subject matter and also provides a description of the invention.
2. A complete specification must provide a complete description and its fully explained use and procedure of the invention.
3. The applicant must disclose the best and ideal method to use the invention.
4. The scope of the invention must be define.
5. The complete specification should include an abstract providing technical information on the invention.

Priority Dates

Priority date refers to the earliest filing date in a family of patent applications:

1. When there is only a single application involve, the priority date would obviously be the filing date of the application.
2. If there are a number of relate patent applications are involve, the priority date would be the filing date of the earliest patent filing date.[3]

Therefore, it is possible to have multiple priority dates if new features were add in the relate patent application.

Publication of Patent

Once the patent application is file at the Indian Patent Office, the patent application gets automatically publish in the Official Gazette after ‘eighteen months’ of completion from the date of filing or priority date.

The date of publication is very important as it provides privileges and patent rights to the applicant as if a patent for invention had granted on the date of publication of the application.

The publication of patent application shall provide following  details:

1. Application number;
2. Application name and address;
3. Title of the invention;
4. Priority details, if any; and
5. Abstract of the invention[4]

Examination of Patent

Once a patent application is file and publish, the next step would involve an examination of the patent application.

The applicant needs to file a request for examination within “forty-eight” months from the date of filing the application or the priority date’ whichever is earlier.

The examiner performs a patent search in order to identify that the prior arts are relevant to the invention.

The objections relate to the applicant shall define properly with proper reasoning supported by relevant legal provisions. So that the addressee would understand without seeking further clarification.

The examination report can either be favorable or adverse to the applicant;

If it is favorable, the applicant, within twelve months has to put the application for the grant.

If it is adverse, it includes formal objections related to errors in the form or fees and other objections related to patentability requirements.

The applicant can also request a hearing within one month from the date of receiving the examination report to explain the reasons regarding the non-acceptance of objections to the examiner.[5]

The examiner can also withdraw the application by filing a written request and paying the requisite fee, any time after the filing of the application and before the grant of the patent.

Reference

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[1] Find law, what is patent, FindLaw, (February 09, 2021,7:05 pm) https://www.findlaw.com/smallbusiness/intellectual-property/what-is-a-patent.html

[2] Bare act, intellectual property laws, page no. 96

[3] Invite, Establishing Priority Dates Of Claims In A Patent Specification, INVNTREEIPSERVICESPVT.LTD, (February 09, 2021, 8:15 pm), https://www.mondaq.com/india/patent/394428/establishing-priority-dates-of-claims-in-a-patent-specification

[4] Admin, Early Publication of Patent Applications in India: Provisions, Importance, and Current Scenario at Indian Patent Office (IPO), EFFECTUALSERVICES.COM, (February 10, 2021, 1:10 pm), https://www.effectualservices.com/early-publication-of-patent-applications-in-india-provisions-importance-and-current-scenario-at-indian-patent-office-ipo/#:~:text=Publication%20of%20Patent%20Application,1)%2C%20Rule%2024).

[5] Anjali Santosh, Patent Process-Examinations Of Patent Applications In India, BANANAIP.COM, (February 10, 2021, 4:32 pm), https://www.bananaip.com/ip-news-center/patent-process-examination-of-patent-applications-in-india/#:~:text=Once%20a%20patent%20application%20is,examination%20of%20the%20patent%20application.&text=The%20examiner%20performs%20a%20patent,arts%20relevant%20to%20the%20invention.