CS Kushbu Vijayvargi

CS Kushbu Vijayvargi

Patent is an exclusive right granted to a person by the Indian Patent office for an invention. Following Persons can apply for patent registration-(True and First)

1. Inventor.

2. Inventor‘s assignee.

3. Legal representative of deceased inventor or his/her assignee.

Jurisdiction-

Application for patent shall be filed as per the Place of residence of the applicant/Place of origination of invention/Address of service in India(Foreign applicants)

Four offices- Mumbai, Delhi, Chennai, Kolkata

Types of Patent applications-

1. Ordinary Application– an Application which has been filed directly in the Indian Patent Office.

2. Convention Application-

i. The countries which are members of an Intergovernmental organization or a treaty are convention countries.

ii. a patent which has been filed in terms of the treaty in a convention country is called a convention application.

Benefit: Where an application for patenting of invention is made in one convention country and then subsequently an application for protection of similar invention is made in India within 12 months from the date of the 1st application then the priority date of claim shall be taken as the date of 1st application.

3. PCT Application-

A PCT Application is an international application governed by the Patent Cooperation Treaty, wherein protection can be sought in upto 145 countries through one single application. However the grant shall be given only in “National Phase

This can be filed at the National/Regional offices or at WIPO (World Intellectual Property Organisation) directly.

(As per sec. 39 of the Patent Act, 1970- Every resident person of India shall take the written permission of the Controller to make an application for patent of invention outside India, However if the application for patent of same invention is made in India 6 weeks prior to the outside application then such permission is not required.)

After filing the International Searching Authority(ISA) gives a written opinion on the invention’s potential patentability.

After 18 months of the filing date the content of the international application is published to the world.

After publication the applicant can request ISA to carry out second search/ request for an International Preliminary Examination report based on which the applicant can amend the application for the National Phase/ can directly proceed to the National Phase.

Usually at the end of 30/31 months the applicant has to start pursuing the National/Regional offices for grant of the patent.

The applicant can choose either the convention application or PCT application based on no of countries and time.

4. Divisional Application– result from division of a Patent Application.

5. Patent of Addition- filed subsequent to the Filing of an Application for Patent, for an improvement or modification.

Documents for patent application in India

1) Application for grant of patent -Form 1

2) Provisional or complete specification. If the provisional specification is filed, it must be followed by the complete specification within 12 months -Form 2

3) Statement and undertaking for the corresponding foreign patent applications(if applicable)- Form 3

4) Declaration of inventorship -to be filed with complete specification/convention application /PCT applications – Form 5

5) A power of attorney (if filed through Patent Agent) – Form-26

6) Priority document- convention application/PCT National Phase Application.

7) Patent statutory fees – As per the first schedule (this is based on the nature of filing/nature oe entity/sheets of specification)

After the receipt of the application, initial processing is carried out followed by scrutiny (based on varied criteria) and then after expiry of 18 months from date of filing or priority the publication of patent is done in the Official e-Journal. After 6 months from date of publication the patent is granted.

Contents of Provisional or Complete specification-

The Specification is a techno-legal document containing full scientific details of the invention and claims to the patent rights. It particularly includes the best method of performing the invention.

As prescribed by the Authorities-

A Provisional Specification is a rough draft/skeleton of the Complete Specification-it contains

  • title
  • description of the invention
  • field of invention
  • background of the invention,
  • object of the invention
  • Summary of the invention

Complete patent specification contains

  • Title- a word or a phrase indicating the content of the invention
  • Detailed description of the invention- complete and elaborate description of the invention.
  • Field of invention- the subject matter to which the invention relates
  • Use of Invention- the areas of application and preferable use of the invention.
  • Background of the invention,
  • Object of the invention – the necessity of the invention
  • Summary of the invention- the distinguishing novel features of the invention for which protection is desired
  • Drawings (where necessary)- written description might be supplemented with clearly labeled drawings,
  • Abstract- short paragraph describing the invention.
  • Best Method- describe the best mode of carrying out the invention
  • Claims- defines what is claimed by the invention and therefore what is sought to be protected.

For any queries related to IPR (Trademarks, Copyrights, Patents) you can reach me at  kushbu_vvargi@yahoo.com

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