Introduction

  • patent is a form of intellectual property. A patent gives its owner the right to exclude others from making, using, selling, and importing an invention for a limited period of time. The patent rights are granted in exchange for an enabling public disclosure of the invention.
  • A patent is a document, issued, upon application, by a Government office for disclosing a new invention by the applicant/s.
  • A patent describes an invention and creates a legal right for the owner to manufacture, use, sell or import the invention.
  • The right created by a patent is a monopoly right granted to the owner by which others are excluded from making, using or selling his invention.
  • This right is vested by the State on the owner in return for the disclosure of the invention.
  • Patents are given only for inventions. Inventions are solutions to specific problems in the field of technology.
  • The protection given by patent is limited for the statutorily specified period.
  • It is important to understand that inventions can be patented if they satisfy three tests of patentability. They are:
  1. An invention should be novel
    2. It should be non-obvious with an inventive step and
    3. It should be useful.

Do patents encourage innovation?

  • The economic view of patents is that they offer a bargain between society and the inventor, in return for a limited period of exclusivity, the inventor agrees to make his invention public rather than keeping it secret.
  • Two questions immediately arise from this: first, what is the optimal design of such a policy instrument? And second, are patents effective at accomplishing this task?
  • Much of recent economic research on patents has been directed to attempting to answer these questions and has found that the trade off between a “short-term monopoly” and “innovation incentive” is much more complex than the usual textbook treatment, making the optimal design problem extremely difficult.

Types of Patent

  1. Product Patent

A product patent allows rights (including exclusive manufacturing and marketing rights) relating to the object. A product patent grants more benefits to the owner. Product patent provides for absolute protection in patented product.

2. Process Patent

Process patent provides for protection only to the technology and method of manufacture. Process patent promotes competitive environment and strong check on prices, as against monopoly created through product patent system wherein resource power used for snuffing out competition fleecing of consumer by charging high price.

3. Utility Patents

It protects useful processes, machines, articles of manufacture, and compositions of matter, or improvements to any of the above. e. g. fiber optics, computer hardware, medications. The requirements are less strict but the duration of the protection is shorter.

4. Design Patents

It guards the unauthorized use of new, original, and ornamental designs for articles of manufacture. The look of an athletic shoe, a bicycle helmet, and the Star Wars characters are all protected by design patents. One can file for both a utility and a design patent for the different aspects of the same invention.

5. Plant Patents

It protect invented or discovered, asexually reproduced plant varieties. Hybrid tea roses, Silver Queen corn, Better Boy tomatoes are all types of plant patents. However, plant patents are not given in India.

6. Reissue Patent

Issued to correct an error in an already issued utility, design, or plant patent, it does not affect the period of protection offered by the original patent.

The Patents (Amendment) Rules, 2006

  • India notified the Patents (Amendment) Rules, 2006 with effect from 5th May 2006, bringing in changes to provide transparency, decentralization of the functioning of patent offices and simplified the procedures making them user-friendly.
  • As per the changes notified under the Patents (Amendment) Rules, 2006, patent applications are now to be mandatory published within one month after expiry of the statutory period of 18 months.
  • In case of request for an early publication, the application is to be published within one month from the date of request.

Salient Features of Patents (Amendment)Act, 2005

  1. In the definition of what are not inventions, the word “mere” is added to the line “new use for a known substance is not an invention”. This means new use for a known substance with some technical input can now be patented.
  2. A computer program is not patentable but its technical application to industry or a combination with hardware is patentable.
  3. A mathematical method or business method or algorithms are not patentable in India.
  4. The product patent is now available for medicine, drug, chemical processes and food.
  5. If a patent is accompanied by a provisional specification, the complete specification should be filed within 12 months of filing the application or otherwise the application is deemed to be abandoned.
  6. A patent application shall be examined only on a request in prescribed manner.
  7. As product patents are now available for medicine, drug, chemical processes and food, the provision relating to Exclusive Marketing Rights (EMR) has been removed.
  8. When a patent has been published but has not been granted, any person can make the representation to refuse the application on the grounds of lack of novelty, inventive steps and industrial applicability.
  9. Only after the grant of patent the application, specification and documents related thereto are opened for public inspection.
  10. The aggrieved party from the order of decision of the Controller can appeal to Intellectual Property Appellate Board (IPAB)

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