Intellectual Property Legislation The patents Act 1970

Intellectual property Introduction Intellectual property is the creation and multiplication of human intellect. Intellectual property basically lies in the concept, idea, thoughts and later applied in actual product, work or process. It is created by incorporating information in tangible objects,capable of multiplying in an unlimited number of times at different locations any where in the world. Intellectual property is divided in to two branches: 1) “Industrial property”- which includes Patents,designs,and trade marks and 2) Copyrights granted to authors, musicians, artists etc.

World Intellectual property Organization (WIPO) Though patents, designs, trade marks and copyrights are popular intellectual properties, according to WIPO intellectual property includes following rights also : a) Inventions in all fields of human endeavor b) Scientific discoveries. c) Industrial designs d) trademarks, service marks, and commercial names & designations. e) Literacy, artistic, and scientific works., f) performances of artists, programmers, and g) protection against unfair competition.

The Patents Act 1970 Meaning A patent is a grant from the Government which confers on the grantee, for a limited period of time, the exclusive privilege of making, selling,and using the invention for which a patent has been granted and also authorising others to do so. The grant of patents for inventions in India is governed by “the Patents Act 1970 “ and the patents rules A patent granted under the Act is subject to conditions stipulated in section 47 of the Act.

INVENTION Meaning of invention Patent is granted to inventions. “Invention is something new which does not exist before.”It is the creative work of some one who got some idea spontaneously and by physical operation converted it into practice. An invention must have novelty and utility if it were to be patented. An Invention is, therefore any new and useful: 1) art,process,method,or manner of manufacture; 2) a machine,apparatus,or other article; or 3) a substance produced by manufacture, and includes any new and useful improvement of any of them

Some of the terms and Concepts under patent Act on Patentee means the person for the time being entered in the register as the grantee or the proprietor of the patent. “Patent Article “ and “Patent Process “ means respectively an article or process in respect of which a patent is in force. Patent Agent a person for the time being registered under this Act as a patent Agent

Contd… terms /concepts relating to patent Exclusive license: means a license from a patentee which confers on the licensee,or on the licensee and persons authorised by him,to the exclusions of all other persons ( including the patentee)any right in respect of patented invention,and exclusive licence shall be construed. Patents of addition is a special type of patent issued to main patent previously issued or in the process of issuing. and where there is improvement or modification to the main patent. Person interested includes a person engaged in,or in promoting,research in the same field as that to which the invention relates

True and First Inventor: Invention is something new which does not exist before.”It is the creative work of some one who got some idea spontaneously and by physical operation converted it into practice. An invention must have novelty and utility if it were to be patented. So a True inventor does not include either the first importer of an invention in to India, or a person to whom an invention is first communicated from out side India. Legal representative means a person who in law represents the estate of a deceased person Assignee includes the legal representative of a deceased assignee and assignee of an assignee “Controller” means The Controller General of Patents,Designs and Trade Marks referred to in section 73(S2(1)(b) Convention Application an application for a patent made by virtue of Section 135(S2(1)(c) Contd… terms /concepts relating to patent

Advantages of obtaining a PATENT 1.) The patentee get the exclusive right to use his invention 2.) The Patentee can bring a suit for infringement of his patent and pray for an injunction, damages, or an account of profits against the person who infringes his patent. 3)If the patentee does not have means to work with the invention commercially, he can sell his patent and grant licenses to others to exploit the patent and thereby earn money. 4) The holder of an exclusive license would have the right of the patentee. He would also able to enforce such right by taking proceedings against the infringement of the patent 5) The patentee can make improvement or modification in an invention described in the complete specification of the main invention and obtain ‘the grant of patent’ for the improvement or modification as a “patent of addition”

Procedure for Grant of patent (steps in Grant of patent ) (Section 6&7) The person interested in obtaining a patent has to apply for the same. 1. Filing an APPLICATION for a PATENT with the patent office. 2.Examination of the application ( application Scruitiny) 3. Acceptance of the application and advertisement of such acceptance in the Official Gazette. 4. Opposition to Grant of patent 5. Grant and sealing of patent.

Who can apply for a patent *An application for a patent can be made by any of the following persons: 1. By any person claiming to be “the true and first inventor” of the Invention. 2. By any person being the assignee of the person claiming to be true and first inventor in respect the right to make such an application 3. By legal representative of any deceased person who immediately before his death was entitled to make such an application. An application under sub section (1) may be made by any of the person referred to there in, either alone or jointly with any person. Company or firm as an applicant A partnership firm, a private or limited company or a corporation can also apply for a patent, but only as an assignee of the inventor. Because such entities can not invent any thing

Government also can Apply for patent as an assignee An Employee Invention by an employee does not necessarily belong to the employer, unless there is a contract to the contrary. However,any invention made in the course of employment while performing duties as an employee, the invention belong to the employer due to implied term of contract. Government Servants are at liberty to apply for grant of patent directly to patent office subject to any special condition of service applicable. Contd…Who can apply for a patent

Contd… who can apply for Patent Defence Employees are not be eligible, except in the manner laid down in the special regulations applicable to them

Kinds of Patents As per the provisions of the Patent Act, normally three kinds of Patents are granted: 1. Ordinary Patent Such a patent is normally obtained by filing application under section 6(1) of the patent Act Patents of Addition It is a patent for improvement in or modification of an invention for which a patent application has already been made or it has been granted. Section 54 and 56 contains provisions regarding this. 3. Patent in respect of convention this type of patents are granted to persons outside India who are based in a country which has convention,treaty, or arrangement with India for grant of patents on reciprocal basis to Indian applicants under section 133. the convention countries are to be specified by notification in the official Gazette by the Central Govt. Application for such patent has to be made FIRST in the “convention country”. Application for patent office in India can be made subsequently. As per the provisions of the Patent Act, normally three kinds of Patents are granted: 1. Ordinary Patent Such a patent is normally obtained by filing application under section 6(1) of the patent Act Patents of Addition It is a patent for improvement in or modification of an invention for which a patent application has already been made or it has been granted. Section 54 and 56 contains provisions regarding this. 3. Patent in respect of convention this type of patents are granted to persons outside India who are based in a country which has convention,treaty, or arrangement with India for grant of patents on reciprocal basis to Indian applicants under section 133. the convention countries are to be specified by notification in the official Gazette by the Central Govt. Application for such patent has to be made FIRST in the “convention country”. Application for patent office in India can be made subsequently.

1. Filling of Application for patent 1. Every application for a patent shall be for one invention only and shall be made in the prescribed form in TRIPLICATE filled in the patent office. 2. In case if the application is made by virtue of an assignment, it should be furnished with the application..i.e. the proof of the right to make application 3. It should clearly stated that the applicant is in possession of the invention and shall name the owner claiming to be the true and first Inventor 4.Every such application shall be accompanied by a provisional or a complete specification 5. It is mandatory to furnish description of the Invention. 1. Every application for a patent shall be for one invention only and shall be made in the prescribed form in TRIPLICATE filled in the patent office. 2. In case if the application is made by virtue of an assignment, it should be furnished with the application..i.e. the proof of the right to make application 3. It should clearly stated that the applicant is in possession of the invention and shall name the owner claiming to be the true and first Inventor 4.Every such application shall be accompanied by a provisional or a complete specification 5. It is mandatory to furnish description of the Invention.

2. Examination and acceptance of Application The Complete Application for patent, and specification there to will be referred by the Controller to an Examiner for making a report to him in respect of the following matters: A) whether the application and related documents are in accordance with requirements of the ACT. B)whether there is any lawful ground of objection to the grant of the patent under this Act. C) the result of investigation made under section 13 (Prior claim or ANTICIPATION) D) any other matter which may be prescribed.

3.Investigation as to anticipation OR prior claim The examiner shall make such investigation as the controller may direct for the purpose of ascertaining whether the invention, so far as claimed in any claim of the complete specification, has been anticipated by publication in India or else where in any document before the date of filing of the applicant’s complete specifications.

4. Acceptance of Complete Specification and Advertisement The Application for a Patent may be accepted by the controller at any time if all the requirements are complied with. On acceptance of the application, the controller shall give notice thereof to the applicant and shall advertise in the official gazette that the specification is accepted.

5.Opposition to Grant of Patent Any person interested may give notice to the controller,of opposition to the grant of patent on any of the following grounds. a)The Applicant wrongfully obtained the invention b)The invention has been published before the date of the claim c)Invention is already claimed in an application earlier dated

6. Grant and Sealing of PATENT The controller will order to grant the patent and seal with the seal of the patent office, if the application has not been opposed, or not refused by the controller. The date on which the patent is sealed shall be entered in the patent REGISTER., The date of patent will be the date of filing of complete specification

Rights of Patentee 1)To exploit the patent(to utilise the patent) 2)To license the Patent to another 3)To assign the patent to another 4)To surrender the patent 5)To sue for the infringement of the patent 1)To exploit the patent(to utilise the patent) 2)To license the Patent to another 3)To assign the patent to another 4)To surrender the patent 5)To sue for the infringement of the patent

Infringement of patents The patent Act 1970 grants statutory right to patentee, his agents, and licensees to work or exploit the Invention. If some other person violates and encroaches up on their rights, it amounts Infringement. Relief or Remedies for Infringement Main provisions relating to rights against infringement are :

Rights against Infringement 1. Right of Exclusive licensee to take proceedings against infringement. by instituting a suit in respect of infringement. 2. take proceedings against infringement under section 84, to prevent any infringement. 3. Grant of Damages on infringement or account of profits. 4.The court may appoint an independent scientific adviser to assist the court or to inquire and report upon any such fact.