Filing an application for getting a patent in India may seem to be an easy task. But while filing the application, not following a correct procedure may lead to invalidation of a patent. Therefore filing an application for getting patent must follow certain procedures provided by The Patent Act 1970.
Patents can be obtained for:
• Any area related to technology.
• Inventions making an improvement to existing inventions.
• For inventing cost-effective manners such as second and third-generation product and process.
It means new inventions comprising of inventions in
• Product Design
• Product Functionality or
• Production Process; Are eligible to get patent protection..
Inventions which are not patentable
Section 3 and 4 of The Patents Act 1970 lay down the following inventions which are considered to be not Patentable:
• Inventions which are frivolous and not unique.
• Inventions causing or likely to cause injury to human, animal or plant life and health.
• Inventions causing or likely to cause danger to the environment
• Inventions which are against morality and law.
• The mere formulation of an abstract theory or discovery of the scientific principle.
• Merely finding of any living or non-living substances occurring in nature.
• Finding any new property
• Just only a new use of known substances and process, machine and apparatus or admixtures of new substances and rearrangement of known devices.
( note:- if it finally results in completely a new product or employs new reactant then it may fall within the ambit of the new invention).
• Inventions in the field of agriculture and horticulture merely developing methods related to agriculture and horticulture or biological processes for production or propagation of plants and animals.
• Inventions involving business method, a mathematical, algorithms or software program per se.
• Dramatics, artistic work or aesthetic creation like music composition or television production.
• Techniques of sports and mere rules of playing games.
• Information presentation
• Topography related to Integrated Circuits
• An invention which in effect a traditional knowledge or which is an aggregation of known properties of components which are traditionally known.
• Inventions in the field related to Atomic Energy.
Strictly, as per Indian Patent Law, an idea which is abstract or mathematical or business methods are usually excluded from the patents.
But those business methods and ideas which is the product of advancement of time and technology that has not yet been covered, described or excluded by the Indian Patent Law, having uniqueness and wider commercial application may well be considered for providing protection under Indian patent law.
However, the possibility of getting patent depends upon the way you put forth your application before the patent office and how well you describe the uniqueness, novelty, and application of your product, process or idea before the patent registrar.
Conditions for a business idea or invention to be patentable
As suggested by Indian Patent Law, an invention carries on an ability to have a new and interesting idea which results in a new product or a process which is capable of having wider commercial application.
(1) The invention must necessarily be new (novel), not priory used and known either through prior publication or claimed in the application for a patent anywhere in the world and in the country. It should not be part of state-of-the-art.
(2) As the inventions are to be judged by a person skilled in the art of the relevant area of technology, so it must not be so obvious to the skilled person. It has to involve some unique and different characters which are distinctive in features from the already existing inventions in a similar field.
(3) The invented product (idea, concept) or process must have the capability to be made used and widely applied in an industry with a greater economic and commercial significance.
Application is to be made by :
1. First and real inventor
2. An assignee of the first and real inventor
3. A legal representative of a deceased person, who immediately before his death was entitled to make such an application.
Procedure to be followed while applying for patent:
First Step:-
Specifying the business idea or invention
Mention the business idea or invention with as much clarity as possible. Providing details regarding the idea or product in writing with a sketch or drawing can prove helpful in giving a clearer picture regarding what your idea meant to be.
The following information may boost your chances of coming closer to get patent. Details like:-
1) The field in which invention is being made
2) Functionality and description of the product
3) Prospects and benefits of the claimed invention.
Second Step:-
Determining if the subject matter is patentable.
As per Indian Patent Law, certain inventions and ideas are excluded from the patents. Therefore, prior to filing an application, checking if the subject matter of the claimed idea or product falls within the ambit of patentability is a must to do the task. ( Inventions not patentable as bring mentioned above)
Third Step:-
Conditions to be fulfilled for patentability
(1) Newness and novelty
(2) Distinctiveness means not obviousness
(3) Applicability in industry or usefulness
(The detailed criteria is mentioned above)
Furthermore, a piece of genuine advice, opinion, and assistance in preparing report regarding patentability, obtained from a patent attorney may prove to be very helpful.).
Fourth Step:-
Determining whether to apply at present stage or not
An opinion of patent professional helps you in determining whether to apply for a patent or not or at what stage you should apply for patent. Knowledge and skills of professionals help you to know how your product is short of patentability, what more is required to do. Hence report made by a professional not only saves time but cost and efforts of the investor as well.
Fifth Step:-
Drafting an application for obtaining patent
The Patent Act provides for the option of filing the provisional application, to protect the business idea or an invention which is not finalized or at an early stage of its development.
Filling a provisional application provides the following advantages:
1) A full time of 12 months is provided to the applicant for completely developing the invention
2) The applicant gets the “priority” right over the invention or idea.
3) The applicant gets the right to use the word “patent pending” regarding his/her product.
4) Filling application and preparation of it becomes less expensive.
5) The applicant becomes eligible for filling International applications and claim priority within 12 months.
Provided, a provisional application must be drafted in such a manner as carrying sufficient information and details to ensure that the claimed invention secures the priority rights.
Sixth step:-
The application needs to be published.
After the completion of a period of 18 months from the date of first filling of the application for patent containing full explanation and specification, the application needs to be published
A request for early application of publication can be made with prescribed fees.
Seventh Step:-
Making a request for examination
Only upon receiving a request, the controller transfers the application to the examiner. An examiner is authorized to examine the patent application on the basis of the given criteria of patentability.
After reviewing the criteria, the examiner prepares a first examination report. It is known as patent prosecution.
The first examination report is submitted by the examiner to the controller. The report holds information regarding existing documents prior to the filling date.
Eighth step:-
Creating responses to objections
objections are raised based on the examination report, which is generally similar types of objections with a large number of applications. So, they can best be tackled with the help of a patent professional. A patent professional analyses the examination report and thus forms the best responses to the objections.
This is the stage where inventor and agent analyze and find the best responses to objections and attempts to show the controller that the idea or the invention is indeed worthy to get patented and meets all patentable conditions.
Ninth Step:-
Resolving all objections
The help of the expert knowledge of the patent professional enables the applicant to resolve all the objections and to clear his points. It helps the applicant to get the fair opportunity to convince the controller for his point and prove the novelty and inventing steps over previously existing arts.
The grant to the patent applicant is made as early as the application is found in order of grant.
Tenth Step:-
The patent to be Granted
Once it is found that the application is in accordance with the set criteria and satisfies all the requirements of patentability. The publication of the grant of patent is made in the patent journal, published from time to time.
The procedure for grant of the patent for your business idea or invention necessarily involves a complicated techno-legal process. There are high chances of your application getting rejected in the first instance if application is devoid of being furnished with the due requirement of clear specification, prior patent search and patentability of the subject matter.
Therefore an opinion and consultation with the Our team of patent experts can boost the chances of getting timely protection for your business idea with the grant of patent.
eStartIndia provides skilled and expert knowledge in regard to the applicability of a patent and is experienced in dealing with the same.
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