INTRODUCTION

Original ideas and creative work are assets which may be of commercial value in the same
way as material goods. Establishing and protecting the ownership of ideas and their represen-
tation or application is the function of intellectual property rights such as patents, utility mod-
els, copyright, trademarks or designs and models. The protective right may depend on some
kind of registration procedure, as for trademarks and as is usually the case for design rights.
Utility models protect technical innovations which might not qualify for a patent, and can be
protected in some countries through registration.
Copyright protects creations such as literary text, musical compositions and works of art,
broadcasts and computer software against unauthorised copying and certain other uses.
Trademarks allow brands of products or services to be distinguished. They may be made up
of two- or three-dimensional signs such as letters, numbers, words, shapes, logos or pictures,
or even sounds.
Designs and models protect the visual appearance of industrial products, i.e. the shape and
colour.
Patents are concerned with technical and functional aspects of inventions.
Patents protect technical inventions. They are valid in individual countries, for a specified
period. Patents confer the right to prevent third parties from exploiting an invention for com-
mercial purposes without authorisation. In return for this period of protection, applicants must
fully disclose their invention. Patent applications and granted patents are published, which
makes them a prime source of technical information. Patent protection is not automatic. One
has to file an application describing the invention in technical terms and in a form that meets
certain requirements. The first step is usually to file your application with a national patent
office. Under the 1883 Paris Convention, someone who files an application in one country
can then claim the "priority" of the filing date of that application for later applications in oth-
er countries, provided that they relate to the same invention and are filed within twelve
months of the first one.
A patent does not confer a right to make use of or exploit an invention. It is a right to prevent
others from deriving economic gain from the technology without the owners permission.
The use and exploitation of technology remain subject to national laws and regulations. A
patent does not provide a guarantee of commercial success. All it shows is that the idea in
question is new, industrially applicable and inventive. It is up to the owner to develop the
business side. The purpose of patents is not to establish long-term monopolies. They are

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granted for a limited period, which can only be extended in the case of medicines and pesti-
cides which have to undergo lengthy clinical trials for safety reasons.

PURPOSE OF PATENTS:
The wide-ranging economic significance of patents derives from the fact that patentees can
prevent third parties from commercially exploiting their inventions for up to 20 years from
the date of filing of the application. This enables them to recoup their development costs and
gives them time to reap the rewards of their investment. Effective patent protection encour-
ages further investment in R & D, and is a key requirement for raising venture capital.
It fosters technical innovation, which is crucial to competitiveness and overall economic
growth. The applicants obligation to publish a full technical description of the invention con-
tributes greatly to the dissemination of new technical knowledge. Over 80 % of the worlds
technical knowledge can now be found in patent documents. This inspires further inventions
and at the same time prevents the duplication of R & D work.

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IMPORTANCE OF PATENT:
Patents can be particularly important for individual inventors and small businesses, since they
can prevent larger companies from taking advantage of their creations. A patented invention
can form the basis for a new business or even enable an inventor to make their fortune. With-
out patent protection, a small business would not be able to compete with larger companies
that could take their idea and produce it more efficiently and on a larger scale. Large compa-
nies can also use patents to protect their inventions.
The patent system can also be incredibly important because it stimulates invention and inno-
vation. It encourages people to come up with new ideas by ensuring that their rights will be
protected, which help move the economy forwards. Since patents have limited terms and they
require that the patented idea is made public, they can also help to encourage development by
ensuring that ideas for processes and products will be available for use at the end of the pa-
tent term.

The importance of patents can also become clear when a company or an inventor finds them-
selves on the wrong side of patent law. Patents prevent anyone other than the patent holder
from making use of an idea, even if they have come up with a new idea that based upon an
old, patented product or process. It is, therefore, important that businesses understand how
the patent system works in order to ensure that they avoid falling foul of it. If they should in-
fringe upon the patent of another person or business, then it could result in expensive legal
problems.

Patents can be important for individual inventors and for the business community and the
economy at large. Patents encourage investment and the development of new ideas, they
make new inventions available to the public so that they can be made use of at the end of the
term of the patent, and they can also provide protection for the inventors of new products and
processes.

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APPLICATION OF PATENT:
Depending on the country in which an innovator wants to market his invention he should file
a patent application in that country. This gives the applicant a protection to its patent against
infringement. Some of the agencies which grant patent in their respective country can be as
follows:
U.S. Patent and Trademark Office (USA)
European Patent Office
Canadian Patent Office (Canada)
Controller General of Patents, Designs & Trade Marks (India)
INDIAN PATENT APPLICATION PROCESS:
The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amend-
ed by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the
Patents (Amendment) Rules 2006 effective from 05-05-2006. The Patent Office, under the
Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, performs
the statutory duties in connection with the grant of patents for new inventions and registration
of industrial designs. Patent Offices are located at Kolkata, Mumbai, Chennai and Delhi to
deal with the applications for patents originating within their respective territorial jurisdic-
tions. Patent Information System (PIS) located at Nagpur maintains a comprehensive collec-
tion of patent specifications and patent related literature, on a worldwide basis and provides
technological information contained in patent or patent related literature through search ser-
vices and patent document supply services. Intellectual Property Training Institute (IPTI) lo-
cated at Nagpur provides training to the officials of IP offices and other users of the system
who are working in the field of Intellectual Property Rights.
INTERNATIONAL TREATIES
India is a member-state of Word Intellectual Property Organisation (WIPO), an International
Organisation, responsible for the promotion of the protection of intellectual property
throughout the world. India is a member of the following International Organisations and
Treaties in respect of Patents:
a) World Trade Organization (WTO) with effect from 01-01 -1995.
b) Convention establishing World Intellectual Property Organisation, (WIPO).
c) Paris Convention for the protection of Industrial Property with effect from Dec.7, 1998.
d) Patent Co-operation Treaty (PCT) with effect from Dec.7, 1998.
e) Budapest Treaty with effect from 17th December, 2001.

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TYPES OF PATENT APPLICATIONS
a) Ordinary Application
b) Application for Patent of Addition
c) Divisional Application
d) Convention application, claiming priority date on the basis of filing in Convention Coun-
tries
e) National Phase Application under PCT
WHO MAY APPLY
The inventor may make an application, either alone or jointly with another, or his/their as-
signee or legal representative of any deceased inventor or his assignee.
WHAT IS PATENTABLE INVENTION
A new product or process, involving an inventive step and capable of being made or used in
an industry. It means the invention to be patentable should be technical in nature and should
meet the following criteria -
i) Novelty: The matter disclosed in the specification is not published in India or elsewhere
before the date of filing of the patent application in India.
ii) Inventive Step: The invention is not obvious to a person skilled in the art in the light of the
prior publication/knowledge/ document.
iii) Industrially applicable: Invention should possess utility, so that it can be made or used in
an industry.
WHAT IS NOT PATENTABLE
The following are Non-Patentable inventions within the meaning of the Act: -
(a) An invention which is frivolous or which claims anything obviously contrary to well es-
tablished natural laws;
(b) 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;
(c) The mere discovery of a scientific principle or the formulation of an abstract theory (or
discovery of any living thing or non-living substances occurring in nature);
(d) The mere discovery of a new form of a known substance which does not result in the en-
hancement of the known efficacy of that substance or the mere discovery of any new property
or mere 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 ;

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(e) A substance obtained by a mere admixture resulting only in the aggregation of the proper-
ties of the components thereof or a process for producing such substance;
(f) The mere arrangement or re-arrangement or duplication of known devices each function-
ing independently of one another in a known way;
(g) A method of agriculture or horticulture;
(h) Any process for the 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.
(i) Plants and animals in whole or any part thereof other than micro-organisms but including
seeds, varieties and species and essentially biological processes for production or propagation
of plants and animals;
(j) A mathematical or business method or a computer programme per se or algorithms;
(k) A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
including cinematographic works and television productions;
(l) A mere scheme or rule or method of performing mental act or method of playing game;
(m) A presentation of information;
(n) Topography of integrated circuits;
(o) An invention which in effect, is traditional knowledge or which is an aggregation or du-
plication of known properties of traditionally known component or components.
(p) Inventions relating to atomic energy and the inventions prejudicial to the interest of secu-
rity of India.
Process of Patent Application:
1. Filing of patent application
2. Publication and examination of patent
3. Withdrawal of patent
4. Opposition to patent application
5. Grant of patent
Step 1: Filing of Patent Application
The patent application can be filed in patent offices located at Kolkatta, Mumbai, Delhi &
Chennai. Documents required for filing are
1) Application form in duplicate (Form 1).
2) Provisional or complete specification in duplicate. If the provisional specification is filed,
it must be followed by the complete specification within 12 months. (Form 2).

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3) Drawing in duplicate (if necessary).
4) Abstract of the invention in duplicate.
5) Information & undertaking listing the number, filing date & current status of each foreign
patent application in duplicate (Form 3).
6) Priority document (if priority date is claimed) in convention application, when directed by
the Controller.
7) Declaration of inventor-ship where provisional specification is followed by complete spec-
ification or in case of convention/PCT national phase application (Form 5).
8) Power of attorney (if filed through Patent Agent).
9) Fee.
Step 2: PUBLICATION & EXAMINATION OF PATENT APPLICATIONS
i) Publication:
All the applications for patent, except the applications prejudicial to the defence of India or
abandoned due to non-filing of complete specification within12 months after filing the provi-
sional or withdrawn within 15 months of filing the application, are published in the Patent
Office Journal just after 18 months from the date of filing of the application or the date of
priority whichever is earlier.
Early Request for Publication:
The applicant may also file a request for early publication in Form-9 with a prescribed fee of
Rs 2500/- or Rs 10,000/- for natural person and other than natural person respectively. The
above application is published ordinarily within one month from the date of the request on
Form-9. The applicant shall have provisional Rights from the date of publication.
ii) Request for examination
No application for patent will be examined if no request is made by the applicant or by any
other interested person in Form-18 with prescribed fee of Rs.2,500/- or Rs.10,000/- for natu-
ral person and other than natural person respectively, within a period of 48 months from the
date of priority of the application or from the date of filing of the application ,whichever is
earlier.
iii) Examination
Application for patent, where request has been made by the applicant or by any other inter-
ested person, will be taken up for examination, according to the serial number of the requests
received on Form 18. A First Examination Report (FER) stating the objections/requirements
is communicated to the applicant or his agent according to the address for service ordinarily

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within six (06) months from the date of request for examination or date of publication which-
ever is later. Application or complete specification should be amended in order to meet the
objections/requirements within a period of 12 months from the date of First Examination Re-
port (FER). No further extension of time is available in this regard.

Step 3: WITHDRAWAL OF PATENT APPLICATION

The application for patent can be withdrawn at least 3 months before the first publication
which will be 18months from the date of filing or date of priority whichever is earlier.
The application can also be withdrawn at any time before the grant of the patent.
The application withdrawn after the date of publication cannot be refiled as it is already laid
open for public inspection. However, application withdrawn before the publication can be
refiled provided it is not opened to public otherwise.

Step 4: OPPOSITION TO PATENT

Pre-grant Opposition
Where an application for a patent has been published but a patent has not been granted, any
person may, in writing represent by way of opposition to the Controller against the grant of
any Patent.
The above representation may be made on the following grounds
(a) that the applicant for the patent or the person under or through whom he claims, wrongful-
ly obtained the invention or any part thereof from him or from a person under or through
whom he claims;
(b) that the invention so far as claimed in any claim of the complete specification has been
published before the priority date of the claim
(i) in any specification filed in pursuance of an application for a patent made in India on or
after the 1st day of January, 1912; or
(ii) in India or elsewhere, in any other document: Provided that the ground specified in sub-
clause
(ii) shall not be available where such publication does not constitute an anticipation of the
invention by virtue of sub-section (2) or sub-section (3) of section 29;
(c) that the invention so far as claimed in any claim of the complete specification is claimed
in a claim of a complete specification published on or after the priority date of the applicant's

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claim and filed in pursuance of an application for a patent in India, being a claim of which the
priority date is earlier than that of the applicant's claim;
(d) that the invention so far as claimed in any claim of the complete specification was public-
ly known or publicly used in India before the priority date of that claim.
(e) that the invention so far as claimed in any claim of the complete specification is obvious
and clearly does not involve any inventive step, having regard to the matter published as
mentioned in clause (b) or having regard to what was used in India before the priority date of
the applicant's claim;
(f) that the subject of any claim of the complete specification is not an invention within the
meaning of this Act, or is not patentable under this Act;
(g) that the complete specification does not sufficiently and clearly describe the invention or
the method by which it is to be performed;
(h) that the applicant has failed to disclose to the Controller the information required by sec-
tion 8 or has furnished the information which in any material particular was false to his
knowledge;
(i) that in the case of convention application, the application was not made within twelve
months from the date of the first application for protection for the invention made in a con-
vention country by the applicant or a person from whom he derives title;
(j) that the complete specification does not disclose or wrongly mentions the source or geo-
graphical origin of biological material used for the invention;
(k) that the invention so far as claimed in any claim of the complete specification is anticipat-
ed having regard to the knowledge, oral or otherwise, available within any local or indige-
nous community in India or elsewhere, but on no other ground.

Step 5: GRANT OF PATENT

When all the requirements of the FER are met or in case of opposition ,if the opposition is
decided in favour of the applicant ,the patent is granted, after 6 months from the date of pub-
lication, the letter patent is issued, entry is made in the register of patents and it is notified in
the Patent Office, Journal, thereafter opening the application ,specification and other related
documents for public inspection on payment of prescribed fee.

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TERM AND DATE OF PATENT
Term of every patent will be 20 years from the date of filing of patent application, irrespec-
tive of whether it is filed with provisional or complete specification. Date of patent is the date
on which the application for patent is filed.

POST GRANT OPPOSITION:

Any interested person can file notice of opposition (along with written statement and evi-
dence, if any) anytime after the grant of Patent but before the expiry of a period of one year
from the date of publication of grant of a Patent in the Patent Office Journal .The above no-
tice shall be filed on Form-7 along with a fee of Rs. 1500/ or Rs. 6000/- for natural person
and other than natural person respectively, in duplicate at the appropriate office.

RENEWAL FEE
To keep the patent in force, Renewal fee is to be paid every year. The first renewal fee is
payable for the third year and must be paid before the expiration of the second year from the
date of patent. Renewal fee is counted from the date of filing of the Patent application. Six
month's grace time is available with extension fee for payment of renewal fee.

RESTORATION
Application for restoration of a patent that lapses due to non-payment of renewal fees must be
made within 18 months of lapse. The application is to be filed in the appropriate office ac-
cording to the jurisdiction.

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European patent applications can be filed at the European Patent Office in Munich, The
Hague or Berlin or at the central industrial property office of any contracting state. The Euro-
pean Patent Convention makes it possible to obtain patent protection in about 40 European
countries on the basis of a single application. The applicant selects the countries in which he
wants protection. European patents are granted by the European Patent Office in a centralised
and thus cost-effective and time-saving procedure. They have the same legal effects as na-
tional patents in each country for which they are granted. Every European patent undergoes
substantive examination and can be obtained for countries which otherwise have "registra-
tion-only" systems, thus providing strong protection. The term, scope of protection, binding
text and grounds for revocation of European patents are the same for all contracting states to
the European Patent Convention.

What can you patent in Europe?

Under the law of the European Patent Convention, patents are only granted for inven-
tions that are new, that involve an inventive step and that are industrially applicable. An
invention meets these requirements if it was not known to the public in any form prior to
the date of filing or to the priority date, was not obvious to a skilled person and can be
manufactured or used industrially.
Discoveries, mathematical methods, computer programs and business methods as such
are not regarded as inventions.
Surgical and therapeutic procedures along with diagnostic methods practised on the hu-
man or animal body are excluded from patentability.
New plant or animal varieties are completely excluded from patentability.
The European Patent Convention does not, of course, recognise inventions whose com-
mercial exploitation would be contrary to ethical principles, such as means of cloning
human life or the use of human embryos for commercial and industrial purposes.

HOW TO APPLY FOR EUROPEAN PATENT?

Following steps should be followed by an applicant while applying for a patent in Europe.

Step 1: Before Application for European patent

Carry out an patent search at Espacenet.

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Espacenet offers free access to more than 70 million patent documents worldwide, containing
information about inventions and technical developments from 1836 to today.
Patent Information.

Step 2: Patent Application

The European Patent Office accepts applications under the European Patent Conven-
tion (EPC) and the Patent Cooperation Treaty (PCT)
A European patent application consists of:
a request for grant
a description of the invention
claims
drawings (if any)
an abstract
Can be done in English, German and French
Professional representative are mandatory only for applicants residing outside Europe
Patent can be filed by legal person, natural person, and joint applicants.

Step 3: Filing and formalities examination

Involves checking whether all the necessary information and documentation has been
provided so that the application can be accorded a filing date

The following are required

An indication that a European patent is sought.
Particulars identifying the applicant and a description.
A reference to a previously filed application.
If no claims are filed, they need to be filed within two months.
Filed in Form no. 1001
Filing can be
In person or post
By fax
online at www.epo.org

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Step 4: Search

Carried out to assess the novelty of invention.

Search report is based on the claims.

Search report is sent to the applicant along with cited documents.

Applicant is informed whether the claim meet EPC requirement or not.

Step 5: Publication of application

Application is published 18 months after the date of filing or priority date if any.

Publication is done in European Patent Bulletin.

Within the same time limit the applicant must pay the appropriate designation fee and,
if applicable, the extension fees.

From the date of publication, a European patent application confers provisional pro-
tection on the invention in the states designated in the application.

Step 6: Substantive Examination

Request for examination has to be filled within 6 months of publication.

Request is not deemed to be filed until you have paid the examination fee.

Once filed, it cannot be withdrawn.

An examining division normally consists of three examiners, one of whom maintains

contact with the applicant or representative.

Amending applications before examination proceedings is not allowed.

Step 7: Grant of Patent

The granted European patent is a "bundle" of individual national patents.

A mention of the grant is published in the European Patent Bulletin.

Step 8: Validation

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 To retain its protective effect and be enforceable against infringers.

The patent owner may have to file a translation of the specification in an official lan-
guage of the national patent office.

The applicant may also have to pay fees by a certain date.

Step 9: Opposition

Notice of opposition can only be filed within 9 months of the grant being mentioned
in the European Patent Bulletin.

Oppositions are dealt with by opposition divisions, which are normally made up of
three examiners.

Opposition is filled in Form no.2300

Step 10: Limitation/ Revocation

Revocation or limitation proceedings initiated by the patent proprietor himself.

At any time after the grant of the patent, the patent proprietor may request the revoca-
tion or limitation of his patent.

The decision to limit or to revoke the European patent takes effect on the date on
which it is published in the European patent bulletin.

Step 11: Appeal

Notice of appeal must be filed in written form within two months after the date of no-
tification of the contested decision. It is not deemed to have been filed until the appeal
fee has been paid.

Within four months after the date of notification of the decision, a written statement
setting out the grounds of appeal must be filed.

The notice of appeal and the statement of grounds may also be filed by fax, or elec-
tronically using the online filing software.

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