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Intellectual Property Rights – India – Part 2


India is governed by The Patents (Amendment) Act 2005 and the Patents (Amendment) Rules 2005

A patent is a monopoly or exclusive rights granted by the government to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article for a limited period. The Patent gives exclusive rights to make, use, sell the invention and to assign or transmit the patent via licensing contracts for a period of 20 years from the date of application.  After the expiry of the duration of patent anybody can make use of the invention. The objective of patent is to encourage and develop new technology and industry, to promote innovation and to stimulate creativity.

Ingredients of Patents

Patent must have novelty (new) and true inventor. You cannot discover another person’s invention and apply for patent. Patent must have lack of obviousness to a person of ordinary skill and knowledge in the related field. Patent must have sufficiency of description/ Be Applicable in the Industry and which can be industrially manufactured or used and must be useful.

An idea cannot be patented. Only the article or the process of making some article by applying that idea can be patented. A device cannot be patented if it has been published anywhere in the world or if it has been used or offered for sale in this country prior to the date of the patent application. The patent does not give its owner the right to practice the invention, only the right to exclude others from doing so. Copying, reproducing or selling a patented invention without obtaining a license or permission from its inventor is strictly PROHIBITED. Unawareness of existing patent is not a defence

Applying for Patent

Before applying for a Patent it is prudent that one does an extensive search to find out if the invention or process already exists.

Do not wait until your inventions are fully developed. Apply for a patent as soon as your idea of the nature of the invention has taken a definite shape.

The subject matter of patent protection has evolved as technology has developed and progressed. In recent years there has been much discussion and debate, and some confusion, regarding the patentability of living matter (non-naturally occurring forms which are the product of human ingenuity), software and business methods, but it is now well established that all these can be patented.

Software and business methods cannot be patented in India. Software can only be protected by copyright.

The first person who files a patent application gets the patent, even if he or she is not the first person to invent the claimed subject matter. Only the U.S and the Philippines have a first to invent system so if you can show you will the first you will be granted the patent.

Patent Cooperation Treaty (PCT)

Allows applicants to file an “International Application” at one’s home country patent office under the auspices of the World Intellectual Property Organization. India is a member of this treaty.

Patent Offices are located at Mumbai, Delhi, Chennai and Kolkata. The Indian Patent office has brought out a Manual of Patent Practice and Procedure, 2005 and General Information Booklet for filing Patent application in India

In the next article we will complete IPR.

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