A Patent is an exclusive right granted by the government to an inventor for a limited period (20 years) in exchange for a full disclosure of the invention. Under the Patents Act, 1970, this protection allows the inventor to exclude others from making, using, or selling the invention without permission.
1. Essential Criteria for Patentability
Not every invention can be patented. To qualify under the Act, an invention must meet three cumulative tests:
Novelty: The invention must be "new" and must not have been published or used anywhere in the world before the filing date.
Inventive Step (Non-Obviousness): The invention must involve a technical advancement or economic significance that is not obvious to a person skilled in that specific field.
Industrial Application: The invention must be capable of being made or used in an industry. It cannot be purely theoretical.
2. What Cannot Be Patented (Sections 3 & 4)
The Indian Patent Act is unique for its strict exclusions, designed to protect public interest:
Frivolous Inventions: Anything contrary to well-established natural laws.
Public Order/Morality: Inventions that cause serious prejudice to human, animal, or plant life (e.g., biological warfare tools).
Section 3(d): The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy. This prevents "evergreening" by pharmaceutical companies.
Agriculture/Horticulture: A method of agriculture or horticulture cannot be patented.
Atomic Energy: Under Section 4, no patent shall be granted in respect of an invention relating to atomic energy.
3. Rights of a Patentee
Once a patent is granted, the owner enjoys several statutory rights:
Exclusive Use: The right to prevent third parties from unauthorized making, using, offering for sale, or importing the patented product.
Right to Assign/License: The patentee can transfer their rights to others for royalty or a fee.
Right to Surrender: The patentee may, at any time, offer to surrender the patent by giving notice to the Controller.
4. Who Can Apply? (Section 6)
An application can be filed by:
The true and first inventor.
The assignee of the inventor (e.g., an employer if the work was done as part of a job).
The legal representative of a deceased inventor.
5. The Registration Procedure
The process is structured to ensure that only genuine inventions reach the "Grant" stage:
Filing (Provisional/Complete): An inventor often files a Provisional Specification first to "freeze" the priority date while the invention is still being perfected. A Complete Specification must then be filed within 12 months.
Publication: The application is kept secret for 18 months, after which it is published in the Official Journal, making it open to public scrutiny.
Request for Examination (RFE): Unlike other IP rights, the Patent Office will not examine the application unless the applicant specifically asks for it (within 48 months of filing).
Examination & FER: An examiner checks for novelty and non-obviousness. If there are objections, a First Examination Report (FER) is issued.
Opposition:
Pre-grant: Any person can oppose the patent after publication but before the grant.
Post-grant: Any interested person can oppose it within 12 months after the grant.
Grant: If all objections are cleared, the patent is granted and recorded in the Register of Patents.
6. Term and Renewal
Duration: Every patent in India lasts for 20 years from the date of filing.
Renewal: To keep the patent in force, a renewal fee must be paid annually starting from the third year. If the fee is not paid, the patent expires and the invention enters the public domain.
7. Compulsory Licensing (Section 84)
A unique feature of the Indian Act is that after three years of a grant, any person can apply for a Compulsory License if:
The reasonable requirements of the public have not been satisfied.
The patented invention is not available to the public at a reasonably affordable price.
The invention is not being "worked" (manufactured) in the territory of India.
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