PATENT: AN INTELLECTUAL PROPERTY RIGHT


As intellectual property rights (IPR) are the rights granted to a person who is the inventor or creator of the product either good or a service benefits granted to the owner is in terms of monetary or recognition. The intellectual property is administered by (WIPO) world intellectual property organization. Intellectual property rights were first recognized in the Paris convention(1883) and the Berne Convention (1886) and afterward Budapest treaty (2001)and recently on 7th June 2019 India join three key WIPO international classification treaties, one of which is Locarno agreement which is about the protection of design with the United Nations and other international organizations, at Geneva.

On 1st June 2019, the Ministry of Commerce and Industry and the Department of Promotion of Industry and Internal Trade (DPIIT) published a draft of the amended Patent Rules, 2019. The draft patent rules, 2019 proposes amendments to sub-rules 2 and 3 of rule 21 and sub-rule 2 of rule 131. While rule 21 deals with filing of priority documents, rule 131 deals with the submission of statement of working of patents.

A better and secure intellectual property system provides a country to raise standards in a way of economic stability or the social or cultural development, on the other hand, patent defines as

A right which is given to the owner/inventor of a good or of a process, which offers a new technical solution to the problem granted to him/her by the patent licensing authority.

A patent provides ownership right which is about 20 years, once the patent is expired it can not be renewed and that patent can be used by the normal public as it will be accessible in the public domain. The patent provides protection towards his/her invention which can not be used as commercially, distributed, sold purposes without the patent owner's consent. Rights which have been granted to the patent owner is given by the courts, in any case of wrongfully use, the patent owner can file a case of infringement before the court. Even if the third party claims and proves that the patent has some kind of ambiguity, the court can declare patent as invalid.

Registration of patent is granted at both the levels national or international, at the national level patent is given by the national patent office or by the regional office which carries examination work for a group of countries, example of such offices are European Patent Office (EPO), African intellectual property organization (OAPI). In the regional country system patent owner requests in which of all countries he would like to secure his patent and its the country call whether to provide protection in their territory or not. The WIPO states a new and secure, reliable, and easily accessible system on the international level, administered patent cooperation treaty (PCT) which provides a single international patent application which has the same effect as a national application filed in designated countries.

Inventions Which Are Patentable
1. The invention must be in five statutory classes
  • Processes
  • Machine
  • Manufacturer
  • Composition of matters; 
  • And any kind of new usage of the above categories.
2. The invention must be  “useful”
3. The invention must be “novel”
4. The invention must be “nonobvious’

Inventions Which Are Not Patentable
According to the patent act 1970, these inventions were not be patented: 
  1. An invention which is frivolous or which claims anything obviously contrary to well established natural laws 
  2. An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.
  3. The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or nonliving substance occurring in nature.
  4. The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
  5. 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; 
  6. The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way
  7. Omitted by the Patents (Amendment) Act, 2002
  8. A method of agriculture or horticulture
  9. Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic.
  10. Or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
  11. Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals; 
  12. A mathematical or business method or a computer program per se or algorithms
  13. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; 
  14. A mere scheme or rule or method of performing mental act or method of playing the game; 
  15. A presentation of information; 
  16. The topography of integrated circuits;
  17. An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.
Types of Patents 
 Basically, there are three types of inventions which can be patented 
  1. Utility Patent: these include invention, discovery, or any useful process, the machine, article of manufacture or composition of matter. In another way, we can say that utility patents are those kinds of patents which can be used as a mere invention of a new process, a new technology, a new type of mobile phone, a part of any electronically used appliances or any chemically made structure which evolves the scientific nature of compounds. An example of such a patent is a warning system for electricity leakage in stagnant rainwater using sensor embedded in footwear:  this is an invention done by a man named k.ravishankar, he makes a device that can be fitted in footwear, consist of microcontroller and an electromagnetic field coil sensor. This system senses electricity in the stagnant rainwater and starts buzzing and vibrating to let the person be aware that electric current is flowing in the water.
  2. Design Patents: these are patents which were invented for the ornamental design and which are original and new, not been already presented in the market. In other words, design patents were those kinds of patents that are used for the visual characteristics of a product. Design patent gives protection to the appearance or the dimensional structure of a product, not the product’s functional or structural features.
  3. Plant Patent: basically, these patents were provided to the invention of any new or distinct variety of plant. In other words, plants were patented which were newly made because of breeding or to some type of seed innovation.
Filing To registration of Patents in India
1. Obtaining of patent 
  • Filing of a patent application to the patent office according to the jurisdiction of the place of the office or residence of the applicant.
  • Payment of the patent fee
2. Formality check 
  • The application will be examined by the officer by checking all the required documents after that payment fee would be accepted.
  • Issuance of application number and the cash receipt by the officer.
  • In some cases, application number and receipt will be posted by post within 2-3 days.
3. Request for publication by filling form 9 of the patent act,1970
4. Request for examination by filling form 18 of the patent act 1970
5. Examination by the controller; the controller gives the examination report and makes a second level assessment of invention.
6. After the acceptance, your patent comes inside the invention registry.
In the last 2 years, the IPO grants the patent in 7 months of the time period which earlier took about 18 months of time.

Fee Structure For Registration of A Patent
Entity
Action
Statutory Fee
Startup Individuals
Basic Filing Fee
1,600 INR
Startup Individuals
Fees for each page in excess of 30 pages
160 INR
Startup Individuals
Fees for each claim in excess of 10 pages
320 INR
Startup Individuals
Filing a request for examination
4,000  INR
Small Entity
Basic Filing Fee
4,000 INR
Small Entity
Fees for each page in excess of 30 pages
4,00 INR
Small Entity
Fees for each claim in excess of 10 pages
800 INR
Small Entity
Filing a request for examination
10,000 INR
Large Entity
Basic Filing Fee
8,000 INR
Large Entity
Fees for each page in excess of 30 pages
800 INR
Large Entity
Fees for each claim in excess of 10 pages
1,600 INR
Large Entity
Filing a request for examination
20,000 INR

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