Patents

Patents are a kind of intellectual property that grants the owner the legal right to prevent others from creating, using, selling, or importing an invention for a certain length of time in return for the innovation’s public disclosure. In most countries, patent rights are protected by civil law, which means that the patent holder must sue someone who infringes on the patent to have his or her rights enforced. Patents are important sources of competitive advantage in certain areas, while they aren’t in others.

According to national laws and international agreements, the system for issuing patents, the conditions put on the patentee, and the scope of the exclusive rights differ greatly across nations. A patent application, on the other hand, must usually contain one or more claims that specify the invention. A patent may include a lot of claims, each of which describes a different kind of property right. Patentability standards such as novelty, utility, and non-obviousness must be met by these claims.

Patents should be accessible in WTO member states for any innovation, in any area of technology, that is novel, involves an innovative step, and is capable of industrial application, according to the TRIPS Agreement of the World Trade Organization (WTO). Nonetheless, what constitutes patentable subject matter varies from nation to country, as well as across WTO member states. TRIPS further stipulates that the duration of the protection shall be at least twenty years.

The term patent comes from the Latin patere, which meaning “to open” or “to lay open” (i.e., to make available for public inspection). It’s a shorter form of the word letters patent, which was a pre-patent open document or instrument granted by a monarch or government conferring exclusive rights to a person. Land patents, which were land grants by early state governments in the United States, and printing patents, which were a forerunner to current copyright, were examples of similar gifts.

The word “patent” now refers to the privilege provided to anybody who invents anything new, valuable, and non-obvious. In some jurisdictions, other types of intellectual property rights are also known as patents: industrial design rights are known as design patents in the United States, plant breeders’ rights are known as plant patents, and utility models and Gebrauchsmuster are known as petty patents or innovation patents.

To separate the main meaning from these other sorts of patents, the extra qualification utility patent is occasionally used (particularly in the United States). Biological patents, business method patents, chemical patents, and software patents are all examples of patents for innovations.

Patentable

The innovation must pass three fundamental conditions to be eligible for a patent. First, it must be innovative, which means it has never been done before. Second, the innovation must be novel, which implies that it must be a considerable advancement over current technology. Simple modifications to previously existing equipment do not qualify as a patented invention. Last but not least, the suggested idea must be practical. According to legal experts, this means that no patents will be issued for ideas that may only be utilised for unlawful or immoral purposes.

Patents are not available for all sorts of discoveries. Even if he or she is the first to uncover a natural rule or scientific concept, no one can get a patent on it. For example, Isaac Newton’s theories of gravity could not have been patented, and Albert Einstein’s formula for relativity, E=mc2, could not have been patented.

Patents are only issued under the European Patent Convention (EPC) for innovations that are capable of industrial application, are novel, and entail an inventive step. An innovation may be characterised as a proposal for putting a concept for addressing a technological challenge into practise. As opposed to merely intellectual or artistic endeavour, an innovation is capable of industrial application if it can be created or employed in any kind of industry, including agriculture.

An invention is considered to be new if it was not previously known to the public in any form (written, oral, or via use) prior to the date of filing or the priority date awarded to the application from an earlier application for the same invention, i.e. it did not form part of the state of the art. In the context of what is previously known to the public, an invention is said to comprise an inventive step if it is not evident to a so-called skilled person, i.e. someone with excellent knowledge and expertise in the subject.

A patent may only be issued under Indian patent law for a novel and beneficial innovation. The innovation must be about a machine, an object, or a material produced through manufacturing, or the manufacturing process for an article. A patent may also be sought for an improvement to an item or a manufacturing method. A patent is not given for the substance itself, even if it is novel, in the case of medicine or drugs, or certain types of chemicals, but a technique of making and substance is patentable. The original inventor or the person who has acquired title from him must make a genuine application for a patent, and the right to apply for a patent must be assignable.

It is not patentable.

Some innovations are not patentable. Methods of medical treatment or diagnosis, as well as novel plant or animal types, are on the list of non-patentable subject-matter under the European Patent Convention (EPC). A patent attorney may provide further knowledge on such subjects. Patents may not be awarded for innovations whose commercialization would be in violation of public policy or morals (obvious examples being land-mines or letter-bombs). Discoveries; scientific ideas and mathematical procedures; artistic creations, such as works of art or literature; systems, rules, and methods for executing mental activities, playing games, or doing business; information displays; computer software are not considered innovations.

The following are not patentable under Indian law (as defined by sections 3 and 5 of the Indian Patents Act, 1970):

An innovation that is frivolous or asserts anything that is self-evidently contradictory to well-established natural rules. An innovation whose main or intended usage would be illegal, immoral, or harmful to the public’s health. The simple formulation of an abstract theory or the finding of a scientific principle.

The simple discovery of a new property or use for a known material, or the use of a known method, equipment, or device, unless the known process produces a new product or uses at least one new reactant.

A substance created by a simple mixing that solely results in the aggregation of the qualities of its constituents, or a method for creating such a substance The simple organisation, re-arrangement, or replication of known devices, each of which functions independently and in a predictable manner. A technique or process of testing that may be used throughout the manufacturing process to make a machine, apparatus, or other piece of equipment more efficient, or to enhance or restore an existing machine, apparatus, or piece of equipment, or to improve or regulate the manufacturing process.

Agriculture or horticultural technique. Any medical, surgical, curative, preventive, or other treatment of a human person, or any analogous treatment of animals or plants to make them disease-free or raise their economic worth or that of their products.

A patent for an innovation linked to atomic energy will not be awarded. Inventing compounds that are meant for or capable of being used as food, medication, or drug. No patent shall be awarded in respect of claims for substances prepared or generated by chemical processes (including alloys, optical glass, semiconductors, and intermetallic compounds), however claims for techniques or processes of manufacturing shall be patentable. The conditions under US law are likewise quite similar to those listed above. Although books, movies, and works of art cannot be patented, they may be protected under copyright laws.

A patent’s rights

Patent registration provides on the rightful owner a right to restrict others from utilising the innovation for a limited length of time, which is protected by the Act. The owner of a patented right has a 20-year monopoly on that right, after which it is subject to exploitation by others.

For the duration of the patent, the inventor has the right to produce, use, offer for sale, sell, or import the invention.

Patents are awarded for a certain period of time.

Initially, the Act only offered protection for medication or drug substances for a limited period of time. However, the Patent Amendment Act of 2005 established a consistent 20-year duration for all patents. As a result, after the 20-year time has passed, anybody may profit from the patented idea. It’s worth noting that, like a trademark, the term of a patent starts on the day of application.

Patent Granting Requirements

• A patent application must be filed with the Indian Patent Office.
• A Patent Application may be filed by anybody, whether an Indian or a foreigner, an individual, a firm, or the government.
• The applicant for a patent must be the authentic and original creator of the invention being patented.
• A collaborative patent application is also possible.
• The patent application must principally reveal the applicant’s best method of carrying out the innovation for which he is entitled to claim protection.
• The applicant must additionally specify the invention’s scope.
• The innovation that will be patented must be novel, entail an innovative step, and be capable of being used in industry.

Only one invention may be the subject of a patent application.

An international application filed under the PCT (Patent Cooperation Treaty) that designates India is treated as if it were filed under the Patents Act, with the priority date accruing from the date of the PCT’s international filing date.

Under the Patent Act, an invention is defined as:

A novel product or procedure incorporating an innovative step capable of industrial application is defined as “innovation” under Section 2(1)(j) of the Act.

In connection to an innovation, the word “industrial application” refers to the invention’s ability to be created or employed in an industry. One of the requirements for a patentable invention is that it must be novel, that is, the invention must not have been in the public domain or be part of the state of the art.

Both procedures and products that are innovative, include an inventive step, and are capable of industrial application qualify as innovations under the Patent Act.

Requirements to Be Considered an Invention

• It must be a brand-new invention.
• An imaginative step is required for invention.
• The innovation must have a practical or industrial application.
• The innovation should not be included in the categories of inventions that are not patentable under Sections 3 and 4 of the Patent Act of 1970.

Inventions that are not patentable are listed in Sections 3 and 4 of the Patent Act. The following are examples of such inventions:

• Any invention that is frivolous or asserts anything that is clearly in violation of well-established natural laws is not patentable.
• Patents are not granted for inventions that are in violation of public order or morals.
• A patent application cannot be filed based on an idea or finding.
• Patents are not granted for inventions using existing substances or processes, such as the discovery of a novel form of a known substance that does not improve the material’s recognised effectiveness.
• A patent cannot be granted for an innovation that is the result of a simple mixing or arrangement.
• A patent cannot be granted for an agricultural or horticultural process.
• A procedure involving the medical treatment of humans and animals, or the enhancement of their economic worth, cannot be patented.
• Plants and animals cannot be patented in whole or in part.
• A mathematical or commercial process, as well as a computer programme or algorithms in general, are not patentable.
• Copyright-protected materials, such as literary, theatrical, musical, or creative works, are not patentable.
• Any rule or plan.
• Information presentation
• Integrated circuit topography.
• Traditional wisdom.
• Atomic energy-related inventions.

Patent Infringement

Patent infringement generally refers to an infringement or violation of a Patentee’s rights against which the Patentee has statutory rights under the Act.

The following are the considerations that must be considered when deciding if a patent has been infringed upon:

1. It must be determined if the infringing conduct was within the scope of the invention for finding infringement. As a result, the infringement must be assessed by applying construction rules to what has been claimed as an invention under the Patent Act.
2. To see whether the infringing behaviour infringed on any of the Patentee’s statutory rights under the Act. In this regard, Section 48 of the Act enumerates the Patentee’s rights with respect to product and process patents.
3. To identify the infringer, or the individual who is responsible for the infringement.
4. To see whether the infringing conduct falls within the categories of activities that do not constitute infringement under the Patents Act, such as government usage, use of a patented product or method for experiment or study, government import of medicine or drugs, and patents on foreign vessels and aircraft.