Tuesday 16 January 2018

How to File a Patent in India : A Students Guide without requirement of attorney along with fees

INTELLECTUAL PROPERTY RIGHTS

Need for IPR

   Technological Developments in 20th century have
    transferred majority of wealth creating work from
    ‘Physical based’ to “ knowledge based ”
   Earlier Labour and Capital were factors behind
    Production but the trend is now shifting to
    knowledge and Information based.
   To encourage this we have IPR



What is IPR ?

   Intellectual Property very broadly, are right
    granted to creators and owners of works that are
    results of human intellectual creativity.
   These works can be in the industrial, scientific,
    literary and artistic domains, which can be in the
    form of an invention, a manuscript, a suite of
    software, or a business name.

Legislations covering IPR

   Patents
   Design
   Trade Mark
   Copyright
   Layout Design of ICs
   Geographical Indication
   Plant varieties

What is Patent

   A Patent is a exclusive ownership right granted by a
    country to the owner of an Invention, provided the
    invention satisfies certain condition stipulated in law.
   A Letters Patent( a certificate ) is issued by a patent
    office to the owner.
   A patent is a property so it can be gifted, inherited,
    assigned, sold or licenced.

Definition of Invention

   Novelty
   Inventiveness (Non-obviousness)
   Usefulness

Novelty

   It is not known to public through publication, or prior use
    anywhere in this world. Ex- Ayurveda.
    An invention will be considered novel if it does not form a
    part of the global state of the art.
    Information appearing in magazines, technical journals,
    books, newspapers etc. constitute the state of the art.
    Oral description of the invention in a seminar/conference
    can also spoil novelty.
    Novelty is assessed in a global context. An invention will
    cease to be novel if it has been disclosed in the public
    through any type of publications anywhere in the world
    before filing a patent application in respect of the invention.
   Prior use of the invention in the country of interest
    before the filing date can also destroy the novelty.
    Novelty is determined through extensive literature
    and patent searches. It should be realized that
    patent search is essential and critical for
    ascertaining novelty as most of the information
    reported in patent documents does not get
    published any where else.


Inventiveness

   It is the feature of invention that involves technical
    advance as compared to existing knowledge or having
    economic significance or both and that make invention
    not obvious to a person skilled in the art.
   The prior art should not point towards the invention
    implying that the practitioner of the subject matter could
    not have thought about the invention prior to filing of
    the patent application.
    Inventiveness cannot be decided on the material
    contained in unpublished patents.
   Ex- gate for a implies b, using aluminium knob for
    almirah, etc.
    The complexity or the simplicity of an inventive step
    does not have any bearing on the grant of a patent.
   In other words a very simple invention can qualify
    for a patent. If there is an inventive step between
    the proposed patent and the prior art at that point
    of time, then an invention has taken place.
    A mere 'scintilla' of invention is sufficient to found a
    valid patent.


Usefulness

    An invention must possess utility for the grant of
    patent No valid patent can be granted for an
    invention devoid of utility.
   Ex- say i have an robot which can only climb the
    tree and not suitable for any task.

Invention definition in Indian Patent Act

   Invention means a new product or process involving
    an inventive step and capable of Industrial application.
    Inventive step means a feature that makes the invention not
    obvious to a person skilled in the art
   Capable of Industrial application means that the invention is
    capable of being made or used in an industry
   However, inventions claiming substance intended for use, or
    capable of being used, as food or as medicine or drug or
    relating to substances prepared or produced by chemical
    processes (including alloys, optical glass, semiconductors and
    inter-metallic compounds) are not patentable. Only process
    claims are allowed in such cases.
    Meaning of chemical process would also include the
    biochemical, biotechnological and microbiological process.


Types of inventions which are not
Patentable in India

   an invention which is frivolous or which claims anything
    obviously contrary to well established natural laws;
   an invention the primary or intended use or commercial
    exploitation of which could be contrary to public order or
    morality or which causes serious prejudice to human , animal
    or plant life or health or to the environment;
   the mere discovery of scientific principle or the formulation
    of an abstract theory or discovery of any living thing or non-
    living substance occurring in nature;
   the mere discovery of any new property or new use for a
    known substance or of the mere use of a known process,
    machine or apparatus unless such known process results in a
    new product or employs at least one new reactant;
   a substance obtained by mere admixture resulting only in the
    aggregation of the properties of the components thereof or
    a process for producing such substance;
   the mere arrangement or re-arrangement or duplication of
    known devices each functioning independently of one
    another in a known way;
   a method of agriculture or horticulture;
   any process for medicinal, surgical, curative, prophylactic,
    diagnostic, therapeutic or other treatment of human beings or
    any process for a similar treatment of animals to render them
    free of disease or to increase their economic value or that of
    their products;
   plants and animals in whole or any part thereof other than
    microorganisms but including seeds, varieties and species and
    essentially biological processes for production or
    propagation of plants and animals;
   mathematical or business method or a computer program per
    se algorithms
   a literary, dramatic, musical or artistic work or any other
    aesthetic creation whatsoever including cinematographic
    works and television productions;
   a mere scheme or rule or method of performing mental act or
    method of playing game;
   a presentation of information
   topography of integrated circuits
   an invention which, in effect, is traditional knowledge or
    which is an aggregation or duplication of known properties
    of traditionally known component or components
   inventions relating to atomic energy

Can a disclosed or published invention
be Patented?

   No, publication of an invention in any form by the
    inventor before filing of a patent application would
    disqualify the invention to be patentable.
   Hence, inventors should not disclose their inventions
    before filing the patent application. The invention
    should be considered for publication after a patent
    application has been filed.
    Thus, it can be seen that there is no contradiction
    between publishing an inventive work and filing of
    patent application in respect of the invention.

Documents Required

   Apart from Various Forms, they are two types of
    Patent Docs
   Provisional Specification
   Complete Specification


Provisional Specification

   A provisional specification is usually filed to establish
    priority of the invention in case the disclosed invention is only
    at a conceptual stage and a delay is expected in submitting
    full and specific description of the invention.
   Although, a patent application accompanied with provisional
    specification does not confer any legal patent rights to the
    applicants, it is, however, a very important document to
    establish the earliest ownership of an invention.
   The provisional specification is a permanent and
    independent scientific cum legal document and no
    amendment is allowed in this.
    No patent is granted on the basis of a provisional
    specification.
   It has to be a followed by a complete specification
    for obtaining a patent for the said invention.
    Complete specification must be submitted within 12
    months of filing the provisional specification. This
    period can be extended by 3 months.
    It is not necessary to file an application with
    provisional specification before the complete
    specification. An application with complete
    specification can be filed right at the first instance.

Complete Specification

   Title of the invention.
   Field to which the invention belongs .
   Background of the invention including prior art giving
    drawbacks of the known inventions & practices.
   Complete description of the invention along with
    experimental results.
   Drawings etc. essential for understanding the invention.
   Claims, which are statements, related to the invention on
    which legal proprietorship is being sought. Therefore
    the claims have to be drafted very carefully.


Advantages of Provisional

   In case you are thinking for attorney.
   The documentation which requires time.
   You can disclose your invention to anyone, without
    having fear that he may steal your idea/invention.
   The above thing will enable you to discuss with
    others and try to correct flaws if present in your
    invention.

Publication

   All patent applications are published in the Official
    journal of Patent Office on expiry of 18 month from
    the Date of filling.
   There is a option of early publication if you pay an
    amount of 2500/-
   Once published the Inventor gets partial rights over
    invention.
   The period between the publication and grant of
    patent can be utilized to find suitable market for
    the invention.

Examination

   Fee of 2500/- needed for request of examination.
   Normally a examination takes 6 month, it depends
    on your serial number.
   Examination can be done only after your
    application is published.
   The First Examination Report (FER) is send to
    applicant address.
   Any objection or amendment is to be done before
    12 months of FER.


Grant of Patent

   Patent is granted after 6 months of FER provided
    there is no objection or suggestions.
   Once Patent is granted, any person can access it
    and can file objections within 12 months.

Forms

   Form 1 for application. Cost 1000/-
   Form 2 for Specification.
   Form 5 for undertaking.
   Form 9 for Early Publication. Cost 2500/-
   Form 18 for Examination. Cost 2500/-
   Thus total of 6000/-

Design

   "Design" means only the features of shape, configuration,
    pattern, ornament or composition of lines or colours applied
    to any article whether in two dimensional or three
    dimensional or in both forms, by any industrial process or
    means, whether manual, mechanical or chemical, separate or
    combined, which in the finished article appeal to and are
    judged solely by the eye
    But does not include any mode or principle of construction
    or anything which is in substance a mere mechanical device.
    Stamps, labels, tokens, cards, be considered an article for
    the purpose of registration of design




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