What is a Patent?

Patent is an exclusive statutory right granted by the government conferring an inventor with the exclusive right to make, use, and sell an invention and for excluding others, from making, using, selling or importing the patented product or process without his consent, in exchange of full disclosure of his invention. As defined in section 2 (1) (j) of the Indian Patent Act, an ‘invention’ means a new product or process involving an inventive step and capable of industrial application.

What all can be patented?

Any creation made by the intellectual labour of a person, which was never thought of before, which may either be a product, machinery or process, can be patented. There are three aspects which are looked at for the grant of patent protection to an invention. These are:

  • Novelty
  • Inventive step or non-obviousness
  • Capable of Industrial Application

However, it must not fall into any of the categories of inventions that are listed as non- patentable under Sections 3 and 4 of the Indian Patent Act.

What is the term of patent protection given to an invention?

The term of patent is 20 years from the date of filing of Indian application in respect of Ordinary and Convention Applications and 20 years from the international filing date for PCT applications, provided that the renewal/annuity fee is paid every year before the expiry of the due date or within the extended period (maximum 6 months).

What are the rights given to a patent holder?

  • Right to exploit the Patent

If the new invention pertains to a product, the Patentee has the exclusive rights to use, manufacture, import, sell or distribute an invention in India. Whereas, when the invention of the inventor pertains to a procedure or
process of manufacturing of any article or substance, the right to exploit would mean the exclusive right to direct the procedure or method to the other person who has been authorised by the patentee in the territory of India.

 

  • Right to exploit the Patent

If the new invention pertains to a product, the Patentee has the exclusive rights to use, manufacture, import, sell or distribute an invention in India. Whereas, when the invention of the inventor pertains to a procedure or
process of manufacturing of any article or substance, the right to exploit would mean the exclusive right to direct the procedure or method to the other person who has been authorised by the patentee in the territory of India.

  • Right to Grant License

The Patent Holder is given the right to grant license or transfer rights for manufacture and distribution of the patented products to others. In case it is a case of co-ownership then with the permission of the colleague, the coowner can delegate the powers of the patent to another individual. The assignment or license is considered to be valid and legitimate only when it is made in writing and is registered with the Controller of Patent.

  • Right to Surrender

By submitting a notice in the prescribed manner, the Patent Holder has the right to surrender a Patent at any time and at his/her own discretion with the permission of the controller. The advertisement for such an offer of surrender shall be made in the Journal in order to notify the interested parties. The publication provides the people with an opportunity to oppose
the offer of surrender of the Patentee.

  • Right to sue for Infringement

The Patentee has the right to sue for Infringement of Patent whenever the rights of Patentee are infringed. Patentee has the right to move the district court which has the jurisdiction to try the suit.

  • Right to apply for Patent of Addition

The Patent Holder has been conferred with this right to make modifications or changes in an existing invention. A patent of addition shall be granted for a term equal to that of the patent for the main invention.

What is ‘Freedom to operate’?

Freedom to Operate (FTO) is also known as Infringement Analysis or Clearance Search which is conducted in order to assess patent infringement risk by the invention which is sought to be patented. It is a due diligence process which
examines the language of claims of the patents and finds any existing patents which may be similar or might be covering the same contents that may amount to infringement by the invention sought to be patented. If any infringement is
found, it would affect the development and the marketing of the product, thereby causing a hindrance to the freedom to operate. For an FTO search, usually both local as well as international patents are taken into consideration.

What are Patent Invalidity Searches?

A patent invalidity search is an extensive prior art search which is conducted after the grant of a patent to a person. This process is used to invalidate a patent filed by a person, by locating any prior arts similar to the same and assessing the language of claim made with the patent in question. The entire purpose of this search is to identify the patent and non-patent literature that were overlooked by the examiner which could possibly help to invalidate the patent. This is also sometimes used by the patent holder itself to show the strength of the patent by proving that the patent holds novelty, has inventive steps, and does not fall under the statutory exception of patents, if the results of such invalidity searches come out as negative. This would result in developing a strong patent portfolio that adds to the strength of the claim of the patent and help against future claims, thereby making the patent more valuable.

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