What Can Be Patented And Cannot Be Patented In India?
Posted on: 2017-02-11 04:24:31
Brought up first in the year of 1856, the Patent Law in India permitted new manufacturers to a certain set of privileges for a period of up to 14 years. From then onwards, new laws were introduced, amended, repealed and rest still in effect. Interestingly, the Indian parliament has failed to define the term “Patent,” leading to an ambiguous understanding in people. Consequently, this failure of providing the definition in the Indian Patent Act was largely criticized.
To be very clear from the start, it is almost impossible to distinctively identify what and what cannot be patented. However, there are specific mentions in the law that doesn’t permit patentability to a so-called invention. Let us proceed steadily on what’s what about patentability in India.
Definition of patent
An inventor of a process, product or solution receives the exclusive rights for his/her invention for a specific period of time from a sovereign state. During this period, it protects the invention from being used, manufactured or sold as it violates the rules of a patent under Section 3 and 4 of the Act.
Patentable entities in India
An invention can be brought in for patent registration under the Indian Patent Law only if it qualifies certain criteria, in terms of its novelty, inventive step and industrial applicability. As mentioned in several articles also, these three terms are the basis for granting an invention a patent status.
Further defining them in simple terms:
- Novelty or New – Nowhere an “invention” would be considered for the exclusive rights of a patent if it has already been in the public domain or included in any publication worldwide. Complete novelty is the first criteria and the invention has to qualify this for being accepted for a patent status.
- Inventive step – It encompasses two conditions: The first that the invention adds a feature to the already existing knowledge of techniques and has economical significance or both. Second, it shouldn’t be an obvious thing for a person who is skilled in the art.
- Applicability – It should have an industrial applicability.
- Invention – It shouldn’t violate the provisions of Section 3 and 4 of the Indian Patents Act, 1970.
Now that we have explained in the above, we would also like to add that these definitions are also quite contested in the court of law. Therefore, people should hire legal help to manage with these matters.
Non-patentable entities in India
Here again, there is a list of exclusions that doesn’t allow an invention to get patented. The following briefly points out the scope of non-patentability:
- Any frivolous idea that stands opposite to the established laws of nature and public health cannot be granted a Patent status.
- Any invention that proves fatal or detrimental for human, plant or animal life cannot be considered for patentability.
- Machines, which can be arranged and rearranged individually, run in a new way cannot be acceptable as an invention.
- An invention from the traditional knowledge, which already has been known in any form cannot receive the status of patentability.
- Artistic, dramatic, literary or musical work, cinematographic works, television productions does not comply with the criteria.
- A newly substance made from existing substances yet not increasing its efficacy has no qualifications as an invention.
- Mixing two or more substances that merely results in its aggregation of properties do not receive approval for patentability.
In the above, there are also certain conditions that are still debatable and found inconclusive. Hence, a legal expert can guide better.
What is the validity period of patent?
Every patent license for a divisional application is valid for 20 years from the date of filing of patent application, which filed in national phase application under Patent Cooperation Treaty (PCT). And the term of patent shall be 20 years from the international filing date under PCT.
Who can apply for a patent?
A true and first inventor or his/ her assignee, either alone or in cooperation with any other person can be filed a patent application in respect of the original invention. But a legal delegate of deceased person can also formulate an application for patent.
Assignee can be a natural person, rather than legal person such as a registered company, a research organization, an educational institute or Government.
Assignee includes the assignee of an assignee also.
When an application needs to be filed for a patent?
A patent application shall be filed to the Intellectual Property India through the appropriate jurisdiction of Patent Office by disclosing the essence of the nature of the invention which helps to register the invention on priority basis.
The application should be filed from the earliest dates of invention and it should not be delayed.
Delay in filing may arise certain risks such as (a) some other inventor might file a patent application on said invention or (b) may be someone has applied for that but not taking any care to process for publication.
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