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Law governing the Application and Procedure of Patents in India

Pexel

What is Patent?

A Patent is an exclusive monopoly rights granted by the Government to an inventor over his invention for a limited period of time. Patent is recognition to the form of intellectual property manifested in invention.

How Did It All Begin In India?

The Indian Patent system originated under the rule of the East India Company based on the British Patent Law of 1852. It was called as The Act VI of 1856 which granted certain exclusive privileges to inventors for a period of 14 years. The Act VI was modified to Act XV in 1859, which granted patent monopolies called exclusive privileges (making, selling and using inventions in India and authorizing others to do so) for a period of 14 years from date of filing an application.

What Is The Process Involved?

Basic steps in the grant of Patents:

1.File a patent application with prescribed fees
2.Publish in the Official Gazette within 18 months
3.Request for Substantive Examination
4.Are objections fulfilled?
5.Outcome of hearing
6.Application accepted
7.Hear the Opposition if any
8.Application is either accepted or cancelled
9.Notification in the Official Gazette
10.Patent Granted

Forms and Documents to be filed for the Application of Patent

FORM 1.- Application.
FORM 2- Provisional OR Complete Specification.
Drawings- Where the invention requires explanation through drawings, such drawings shall be prepared in accordance with Rules 15 and shall be supplied with, and referred to in detail, in the Specification.
Priority Document(s).
Statement and Undertaking on FORM 3 — For Prosecuting an Application for a Patent in any Country outside India in respect of the same or substantially the same Invention.
FORM 26 — Power of Attorney
Fees — On Application for a Patent in FORM 1 accompanied by Provisional / Complete Specification.
For Individual(s)- Rs. 1,000/-
For legal entity other than individual(s) either alone or jointly with other(s). — Rs. 4,000/-
Organization of Patent offices in India

The head-quarter of the Patent office is in Kolkata. The branch offices are in Delhi, Mumbai and Chennai.

What is the time duration to get the application accepted?

The objections raised by the Patent Office have to be placed in the order of acceptance by the applicant within 12 months from the date of issuance of the First Examination Report.

The application once placed in the final order of acceptance is notified in the Official Gazette and is open for opposition by any interested party.

The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are, therefore, territorial in nature.

Commonly, a nation forms a patent office with responsibility for operating that nation’s patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts.

There is a trend towards global harmonization of patent laws, with the World Trade Organization (WTO) being particularly active in this area. The TRIPs Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPs agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

A key international convention relating to patents is the Paris Convention for the Protection of Industrial Property, initially signed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The most significant aspect of the convention is the provision of the right to claim priority: filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Because the right to a patent is intensely date-driven, this right is fundamental to modern patent usage.

Author: Adv. Lubna Yusuf
Founder, La Legal

Originally published at https://www.legalindia.com

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Lubna Yusuf

Lubna Yusuf

BOOKS: www.amazon.com/author/lubnayusuf | Author, Lawyer, Filmmaker, Multidisciplinary Artist |Co-author TheAIBook | Instagram @iglubna

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