PATENT FAQs

A patent is the core legal protection for inventors and their inventions. The purpose of this protection is to provide an inventor with the necessary time and space to make, use and sell his or her invention without the threat of completion. In essence, it is the right to exclude others, for a specified time period, from simultaneously building, using or selling that particular invention in the marketplace.

A patent gives the inventor the right to stop others from making, using, selling, or importing the patented goods or services without the permission of the patent holder. Allowing you to retain exclusive commercial rights, is a big deal when you look to monetize your invention. Additionally, there is the altruistic reasoning for patents, and that is as a contribution to the world at large, participating in the advance of technology as a whole.

According to the patent statute “Any person who invents or discovers any new and useful process, machine manufacture, the composition of matter or any new and useful improvement thereof, may obtain a patent.” This gives us the four main categories of patents.

1. Process: A set or series of acts, in a certain order and sequence.

2. Machine: The apparatus itself. The sum of various physical parts that carry out a process.

3. Manufacture: An assembly or system of apparatuses.

4. Composition of Matter: The combination and mixing of substances that form a chemical union, and changing them at the atomic level.

The three major types of Patents available are:

Utility: Structure, operation or composition of a machine, product or process. This covers the function of the invention.

Design: The Non-functional aspect of your creation, protecting the physical appearance and design.

Plant: A patent awarded for the invention or discovery of an asexually reproduced variety of plant, requiring the creation to be reproducible in a lab setting without the aid of mother nature.

Generally throughout the world, the term of the patent is twenty years from the filing date in the case of domestic patents, and it is twenty years from the date of the international filing date in case of national phase applications entered through the Patent Cooperation Treaty (PCT). Some countries also allow patent term adjustment in case of delay from the side of the patent office in the grant of patent and patent term extension in case of delay from the side of regulatory bodies in case of pharmaceutical and agricultural patents. In India, no patent term adjustment or patent term extension is granted. Once a term is expired, patents can’t be renewed.

The application for a patent alone does not restrict others from copying your product/process. However, you can inform the infringer that your patent is pending and you intend to take action against them after the grant. A granted patent will give you the right to stop others who are copying your product/process.

The value of a company increases by having patents since the patent owner now has exclusive rights over their patented product/process. These rights create a barrier to entry for the competitors, thereby creating a larger market share for the patent owner.

Further, the Indian patent system has provisions of the differential official fee for applicants belonging to different categories. The applicable official fee for small entities and startups is substantially less than for other entities. The applicant has to provide the necessary documents for claiming the official fee benefit.

The best thing about patents is that even if a company does not do well, it will still retain its patent portfolio which will prove to be a valuable asset. Irrespective of the profit or loss of a business, obtaining a patent is always valuable.

The following are the steps involved in patent registration in India:

• Filing the patent application is the first step of patent registration.
• The patent office then publishes the complete patent specification ordinarily after 18 months from the priority date. Optionally a request for early publication can be made whereby publication happens ordinarily within one month of such request.
• The next step in the process is an examination by the patent office. Unlike publication, examination of the patent application is not automatic and the request has to be filed within 48 months from the earlier date of priority and filing of the application.
• Once a request for examination has been made, the Patent office issues an examination report to the applicant. Examination of the application is done based on the date of filing of the request for the examination i.e. earlier the request made for the examination, earlier in the report issued.
• After the issuance of the first examination report, the application is to be put in a condition of allowance within 12 months by waiving the objection and complying with requirements, if any.
•  After considering replies to the first or subsequent examination reports and hearing notices if any, the controller grants or rejects the patent application.
• In India, a patent application can be opposed before and after the grant of the patent. Patents can also be revoked under some circumstances. After the grant of the patent, renewal fees have to be paid to keep the patent in force.

Currently, there is no unitary worldwide patent and the applicant has to file in respective jurisdictions separately in one of the following routes:

• Paris Convention: Direct filing in another country is facilitated through the Paris Convention for all members of the convention which includes India and all major countries. However, the filing through Paris convention has to be done within 12 months from the priority date.
• Patent Cooperation Treaty System: PCT is a vehicular system that allows an applicant to file in PCT contracting states within 30-34 months from the priority date depending upon jurisdiction instead of 12 months. The PCT system also provides for an International Search Report on the invention – giving the applicant a glimpse of the chances of a patent grant in multiple jurisdictions. However, it is pertinent to note that the PCT application itself has to be filed within 12 months from the priority date. 

 According to the patent statute “Any person who invents or discovers any new and useful process, machine manufacture, the composition of matter or any new and useful improvement thereof, may obtain a patent.” This gives us the four main categories of patents-

• Process: A set or series of acts, in a certain order and sequence.
• Machine: The apparatus itself. The sum of various physical parts that carry out a process.
• Manufacture: An assembly or system of apparatuses.
• Composition of Matter: The combination and mixing of substances that form a chemical union, and changing them at the atomic level.

 Patent rights are limited to specific territories. Typically, the exclusive rights granted by a patent only apply within the country or region where the patent has been filed and granted, as per the laws of that particular jurisdiction.

 It is crucial to file a patent application before making the details of an invention public, lest it would be considered as prior art (any information made accessible to the public anywhere in the world through written or oral means before the filing date).  

In countries that follow this definition of "prior art", publicly disclosing an invention before filing a patent application will prevent obtaining a valid patent over it, as it will not meet the criteria of ‘novelty’. 

To prevent such mishappening it is always advisable to file a provisional patent application beforehand. The applicant thereby gets a window of 12 months to file the complete specifications. 

• Leave the door open for competitors to capitalize on your ideas. If the product proves to be successful, other companies may replicate it without seeking your permission. Both large and small enterprises may be able to produce and sell the same product at a lower cost, eroding your market share.
• The opportunities to license, sell, or transfer technology will be greatly hindered.