History of Patenting in India
- The Patents and Design Act of 1911 was passed in India as the country’s first patent-related law.
- Following independence, the patents bill was unsuccessfully introduced before the parliament in 1949 and 1965. However, the bill was finally passed in the year 1970, and the act entered into force on April 20, 1970.
- The Patents Act, 1970 (No. 39 of 1970) and the Patents Rules, 2003 regulate India’s patent system.
In 1947, 1985, 1999, 2002, and 2005, the Patents Act was updated numerous times. In 2006, the rules were again changed.
What is Patentable Invention in India?
The following criteria must be met by a product to be patentable.
- Novelty: The subject matter described in the specification has not been previously published in India or anywhere else as of the date the Indian patent application was filed.
- Inventive Step: Given the preceding publication, knowledge, or document, the invention is not obvious to a person of ordinary skill in the art.
- Industrial applicability: The invention must be usable in industry.
What are not Patentable Inventions in India?
The following are Non-patentable inventions within the meaning of the Act:
- An invention that violates well-established natural rules or is frivolous is not eligible for patent protection.
- For an invention to be patentable, it must have an industrial application. However, an innovation is not patentable if its usage violates morality or public order, poses a major threat to the health or environment, or endangers human, animal, or plant life.
- It is not possible to patent the simple discovery of a scientific concept, the formulation of an abstract theory, or the discovery of any living being or non-living substance that naturally occurs.
- It is not possible to patent the simple discovery of a new form of a chemical that does not improve its known efficacy, or the simple discovery of a new property or new application for an existing process, equipment, or device.
- A process for making such a material or a compound obtained by simple mixing that just aggregates the attributes of the components is not patentable.
- It is not patentable to simply arrange, rearrange, or duplicate existing devices that act independently of one another in a recognized manner.
- A horticultural or agricultural method cannot be patented. Horticulture is the industry and science of plant cultivation, which includes the process of preparing soil for the planting of seeds, tubers, or cuttings. Agriculture is the production of food and goods through farming.
- It is not possible to patent any method that is used to treat humans or animals to make them disease-free or to boost their economic value or the value of their products in any way, including pharmaceutical, surgical, curative, prophylactic, diagnostic, therapeutic, or other treatments.
- Animals, plants, seeds, varieties, and species are all exempt from patent protection. According to the Protection of Plant Varieties and Farmers’ Rights Act, 2002, plant varieties are protected in India. However, providing the microorganisms meet the requirements for patentability, they are patentable (Novelty, Industrial application, non-obviousness). Additionally, the ability to patent fundamental biological functions like photosynthesis, blood coagulation, and inflammation is prohibited. A process’s level of human involvement decides whether it counts as a fundamental biological process or not.
- Computer programs with a technological impact when coupled with hardware are patentable, but mathematical or business methods, computer programs, or algorithms by themselves are not. Although a mathematical equation cannot be patented, a system or device that uses the equation may qualify as a patentable invention.
- A simple plan, regulation, technique for carrying out a mental act, or strategy for playing a game is not patentable.
- Information presentation is not patented.
- Information expressed in any way, whether verbally, visually, symbolically, or visually on a carrier, is not able to be protected by a patent.
- Integrated circuit topography is not patented. The integrated circuit is a miniature electronic circuit made up primarily of passive components and semiconductor devices that has been fabricated on the surface of a thin semiconductor substrate. The Semiconductor Integrated Circuit Lay-out Designs Act, 2000 protects integrated circuit topography, which is not patentable under the Indian Patent Act, 1970. Almost all current electronic devices use integrated circuits, which have transformed the field of electronics.
- No invention is patentable if it amounts to traditional knowledge, aggregates or duplicates existing properties, or contains one or more traditionally known components.
Rights to Patents
An application for a patent may be submitted by:
- Any person claiming to be the true and first inventor of the invention.
- Any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application.
- By the legal representative of any deceased person who immediately before his death was entitled to make such an application.
Types of Patent Applications:-
Four types of patents are granted under the patents Act 1970.
- Ordinary Patents
- Patents of addition
- Convention application with priority date, claiming on the basis of filing in convention countries
- National Phase application.
Procedure of filing an Application in India:-
- Inventor or Assignee should not disclose the idea of invention before filing a patent application, otherwise the innovation will no longer be considered as new.
- Verify that invention is patentable or not.
- Draft the patent application with Specification, Claims, Abstract and Drawings (if required).
- Forms for filing the patent application:
Form 1 – Application for patent grant
Form 2 – with provisional or non-provisional specification and drawings (if required)
Form 3 – Undertaking and statement about under section 8 foreign application (mandatory only for foreign filed patents)
Form 5 – Declaration of invention to be filed with complete application
Form 26 – Power of Attorney
Form 28 – Mandatory if applicant or assignee is small entity or start-up
Form 9 – For Expedited Publication (optional)
Form 18– For Expedited Examination (optional)
Priority Documents – Only if priority is being claimed from a foreign patent then inventor or assignee need to provide documentations.
Process for obtaining Patent Grant in India:-
Patent Filing → Patent Publication → Patent Examination → Examination Response Submission → Patent Hearing (if examiner is not satisfied with response) → Patent Grant for 20 years from filing date of patent (if response or hearing arguments accepted) → Patent Renewal after 20 years from filing the patent.