A patent is a legal monopoly, granted for a limited time by a country to the owner of an invention in exchange for public disclosure of the invention. A patent gives an inventor the exclusive right for a limited period of time to stop others from making, using, offering for sale, selling or importing the patented invention without the permission of the inventor. Merely holding a patent does not give the owner the right to use or exploit the patented invention. That right may still be affected by other laws such as health and safety regulations, food and drugs regulations or even by other existing patents. That is why a patent is called a “negative right”.
Who can file a patent in India?
An application for a patent for an invention may be made by any person claiming to be the true and first inventor of the invention or by his/her assignee or by the legal representative of any deceased person who immediately before his death was entitled to make such an application. There are no age requirements and a minor is also entitled to apply for a patent. An application may be made solely or jointly with any other person. Foreigners and nationals not living in India need an address for service in India for filing an application in India. They may appoint a registered agent or representative whose address for service can be the address for service in India.
Grant of a Patent
The grant of an application is published in the Official Journal and is notified therein for post-Grant opposition. A patent can be revoked by filing a post-grant opposition within one year from the date of publication of the grant of patent.
Post - Grant Procedures
It is possible for a patent to be revoked on the grounds of: prior publication anywhere in the world, public use or knowledge in India, lack of novelty with regard to the subject matter, obviousness, lack of inventiveness, ambiguity, insufficiency of description of the invention, fraud, false suggestion or representation that the person named as the inventor is not the true inventor, lack of utility, non-patentability of subject matter (E.g. computer programme per se, atomic energy, mere admixture, mere arrangement of known devices, process of testing, method of agriculture or horticulture, process of medicinal treatment), failure to furnish or falsity in information regarding corresponding applications in other countries supplied to the Controller or that the invention is contrary to law or morality.
Examination of Application
The Indian Patent Office makes both formal and substantive examinations. A Request for Examination has to be made within 48 months of the priority date by paying the requisite fees. If no request is made within the stipulated time period, the application will not be examined and the application will be considered as withdrawn by the applicant. In India, it is not possible to file a request for examination after the deadline by paying a penalty or surcharge.