Patenting in India

What are patents?

Inventions must be new and useful. It is a fundamental principle of patent law that a patent monopoly is granted only for inventions which are new and useful, and which have industrial application. This is embodied in the definition of  "inventions". The question whether a particular invention is new and useful is often extremely difficult to decide as it depends upon the state of the prior art in the particular field which includes prior publication on the subject and prior user.

  Letter-patent or Letters Overt (literae patentes) were writings of the sovereign, sealed with the Great Seal of England whereby a person or a public is enabled to act or enjoy privileges which he or it could not do or enjoy without such authority. They are so called because they are to be closed with seal affixed and ready to be shown for confirmation of the authority thereby given. Peers are sometimes created by letters patent. Letters patent of precedence were, often, granted to Barristers.

  An application for a patent must be by its true and first inventor or a person who has derived title from him. The right to apply for a patent is assignable. The invention claimed should be novel and must not be obvious to those who are skilled in the art to which it relates in India.  The Patents Act, 1970 requires an applicant to furnish particulars of applications furnished by him in respect of the same invention in other countries and the objection taken to such applications, and the amendment affected to the specifications. This is meant to enable judicial scrutiny and review of the application. Publication abroad, prima facie, constitutes anticipation to deprive the invention of its novelty. One peculiar aspect of the patent law is that once a patent is granted to any person for a particular invention subsequently another person cannot acquire a patent grant for the same invention even if it has been invented independently.

Patent law in India is regulated by the Patents Act , 1970 (39 of 1970) and the Patents Rules, 1972. The Parliament of India has ratified drastic changes to the Patents Act, 1970. These changes have become effective from the 1st day of January, 1995. The changes are in line with the commitments made by India before the World Trade Organization (WTO).  India is committed to harmonize its intellectual property laws with the members of the WTO. The WTO agreement enables a signatory to avail of a transition period of ten years to implement its commitments. India has availed off the full transition period of ten years upto 2005 for formulating and amending its Patent Laws. With effect from the 1st of April 2005, the Indian Patent Act is in sync with WTO mandates and India is compliant with WTO in relation to patentiing of inventions in India.

1. Flow diagram of Patent Application

   Flow diagram For registeration of a Trade mark