FREQUENTLY ASKED QUESTIONS- - Indian Patent …

1 2017 FREQUENTLY ASKED QUESTIONS- PATENTS Disclaimer:- The replies given to the probable q uestions are for the purpose of g uiding public and cannot b e q uoted in any legal proceedings. They will have no legal purpose. The users are advised to refer t o the provisions of the Patents Act 1970 as a mended a nd t he Patents Rules 2003 as a mended including t he latest fee schedules, available at Office of CGPDTM, I NDIA 2017 September, 2017 [ FREQUENTLY ASKED QUESTIONS] Office of CGPDTM, INDIA | 2 GENERAL INFORMATION: 1. What is a Patent ? A Patent is a statutory right for an invention granted for a limited pe riod of time to the pa tentee by the Government, in excha nge of full disclos ur e of his invention for excluding others, from making, us ing, s elling, importing the patented pr oduct or proc ess for pr oducing that pr oduct for those purposes without his c onsen t.

2 2. What is the term of a Patent in the Indian system? The term of every Patent granted is 20 years f rom the da te of filing of a pplication. However, for application file d under na tional phase under Patent Cooperation Treaty (PCT), the term of Patent will be 20 years from the international f iling da te accorded under PCT. 3. Which Act governs the Patent system in India? The pa tent sys tem in India is governed by the Patents Act, 1970 ( of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Pate nt Rules are regularly amended in consonance with the ch anging en vironment, most recent be ing in 2016. 4. Does Indian Patent give protection worldwide? No. Patent pr otection is a territorial right and the refor e it is effective only within the territory of India. T he re is no concept of global Patent .

3 However, fili ng an application in India en ables the applicant to file a corresponding application for same invention in convention countries or under PCT, within or be for e expiry of tw elve months from the filing da te in India. Patents should be obta ine d in each country whe re the applica nt r eq ui res protection of his invention. September, 2017 [ FREQUENTLY ASKED QUESTIONS] Office of CGPDTM, INDIA | 3 5. What can be pat ented? An invention relating e ither to a pr oduct or pr oc ess that is new, involving in ventive s tep a nd capa ble of industrial appli cation can be patented. However, it must no t fall into the categories of inventions that are non- pa tentable un der sections 3 a nd 4 of the Act. 6. What is the criteria of p atenta bility? An invention is pa tentable subject matter if it meets the following criteria - i) It s hould be novel.

4 Ii) It s hould have inventive step or it must be non-obvious iii) It s hould be capable of I ndustrial application. iv) It s hould not attract the provisions of s ection 3 a nd 4 of the Patents Act 1970. 7. What ty pes of i nventions a re not patentable in India? An invention may sati sfy the condition of novelty, inventiveness a nd us efulness but it may not qualify for a Patent under the following situa tions: i. an invention whi ch is frivolous or which claims anything obviously contrary to well es tablished na tu ral laws; ii. an inven tion the pr imary or intended us e or commercial exploitation of which could be contrary to public or der or morality or which caus es serious pr ejudice to human , animal or plant lif e or health or to the environment; iii. the mere disco very of scientific pr inciple or the formulation of an abs tract theory or disco very of any living th ing or non-living substance oc curring in natu re; iv.

5 The mere disco very of a ne w for m of a known substance which does not result in enhanc ement of the known efficacy of that substance or the mere disco very of any ne w pr operty or ne w us e for a known substance or of the mere us e of a known September, 2017 [ FREQUENTLY ASKED QUESTIONS] Office of CGPDTM, INDIA | 4 pr oc es s, machine or apparatus unless suc h known pr oc ess results in a ne w pr oduct or e mploys at le ast one new react ant; Explanation: For th e purposes of th is clause, sa lts, esters, ethers, polymorphs, meta bolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and oth er derivatives of known su bsta nce sh all be considered to be th e sa me subst ance, unless th ey diff er si gnific antly in properties with reg ards to efficacy. v.

6 A substance obtained by mere admixture resulting only in the aggregation of the pr operties of the components thereof or a process f or producing suc h substanc e; vi. the mere arrangement or re-arrangement or duplication of known de vices each functioning indepe ndently of one another in a known way; viii. a method of a gricultu re or horticultu re; ix. any pr oc ess for medicina l, sur gical, curative, pr ophylactic (diagnostic, therapeutic) or other treatment of human be ings or any pr oc ess for a similar treatment of ani mals to render them free of disease or to increase their economic value or that of their pr oducts; x. plants and animals in whole or any part thereof other than microorganisms but including seeds , varieti es and spe cies and es sentially biological pr oc esses for pr oduction or propagation of pl ants and animals; xi.

7 A mathematical or business method or a c omputer program per se or a lgorithms; xii. a literary, dr amatic, musical or artistic wor k or any other aes the tic creation wha tsoe ver including cine matographic wor ks and television productions; xiii. a mere sch eme or rule or method of pe rfor ming mental act or method of playing game; xiv. a presentation of information; xv. topography of integrated circuits; xvi. an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of t raditionally known component or c omponents; xvii. inventions relating to atomic ene rgy; Office of CGPDTM, INDIA | 5 September, 2017 [ FREQUENTLY ASKED QUESTIONS] 8. When should an application for a Patent be f iled? An application for a pa tent can be file d at the earliest possible da te and should not be de layed.

8 An application file d with pr ovisional specification, disclos ing the es sen ce of the na tu re of the invention he lps to register the pr iority of the invention. Delay in filing an application may entail some risks suc h as (i) some other inventor might file a pa tent application on the said invention and (ii) there may be either an inadv ertent publication of the invention by the inventor himself/herself or by others independently of him/her. 9. Can any invention be patented after publication o r display in the publi c exhibition? Generally, an invention which ha s be en either published or publicly displayed cannot be pa tented as suc h publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act pr ovides a grace period of 12 months for filing of pa tent application from the da te of its publication in a journal or its public display in an exhibition or ganised by the Government or di sclos ur e be for e any learned soc iety or publishe d by applicant.

9 The de ta iled conditions are pr ovided under Chapter VI of the Act (Section 29-34). 10. Does the Patent Office keep information of t he invention s ecret? Yes. All the pa tent applications are kept secret upto 18 months from the date of filing or pr iority da te whiche ver is earlier and thereafter th ey are publishe d in the Official Journa l of the Patent Offi ce which is publishe d every week and also availa ble on the IPO website. After its publication, public can inspe ct the documents and also may ta ke the photocopy thereof on payment of the fee as prescribed. 11. Is it necessary to visit the Indian Patent Office to transact any business relating to Patent application? It is not ne cessary to visit the pa tent office to file the application as online filing facility is pr ovided.

10 Only in case the application is required to be file d offline, the same can be filed physically at the counter of the Offi ce. Mor eo ver, all the communications with the office are Office of CGPDTM, INDIA | 6 September, 2017 [ FREQUENTLY ASKED QUESTIONS] made th rough emails. However, he aring pr oc eedi ngs rel ating to pa tent appli cation can be attended with pr ior appointment on any wor king da y during prosecution sta ge. 12. Where can one find the information relating to published/ granted Patent application? The information rel ating to the pa tent application is publishe d in the Patent office Journa l issued on every Friday. This is also availa ble in elec tronic for m on the website of the Patent Offi ce, 13. What are the conte nts of t he Patent office Journal? The Patent of fice Journa l contains information relating to pa tent applications which are publishe d u/s 11A, post grant publication, resto ration of pa tent, notifications , list of non- wor king pa tents and public notices issued by the Patent Offi ce.