Not every invention can be patented in India. To obtain a Patent, the invention must meet specific criteria outlined in the Patent Act of 1970, specifically in Section 3 and Section 4. These sections define exceptions to what is considered an invention and, therefore, non-patentable. There are three fundamental conditions that an inventor must satisfy to secure a patent:
1. Novelty
The invention must be entirely novel, meaning it should not exist anywhere else. It should be a unique creation that hasn’t been previously disclosed.
2. Commercial Applicability
The invention should have practical applications in the commercial world. In other words, it should be capable of being used for industrial or business purposes.
3. Non-Obviousness
The invention should not be obvious to a person skilled in the relevant field. It must represent a significant improvement or innovation compared to existing inventions.
Persons Entitled to Apply for Patent
According to Section 6 of the Patent Act, 1970, several categories of individuals or entities are entitled to apply for a patent in India:
- True and First Inventor: Any person who can demonstrate that they are the true and first inventor of the invention is eligible to apply for a patent.
- Assignee: If someone else has the right to make the application, such as an assignee of the true and first inventor, they can apply for the patent.
- Legal Representative: In cases where the original inventor has passed away but was entitled to apply for a patent before their death, their legal representative can make the application.
Different Types of Patents
In India, there are various types of Patents that can be applied for, depending on the nature of the invention:
1. Utility Patents
Utility patents are the most common type of patent. They cover new machines, processes, or systems that have practical applications. Innovations like genetic engineering and internet-delivered software often fall under this category.
2. Design Patents
Design patents protect the appearance, surface ornamentation, shape, or configuration of an object. These patents are granted when the design is inseparable from the object’s function. If someone wants to protect the functional or structural aspects of an object, they must apply for a utility patent.
3. Plant Patents
Plant patents are meant to protect new and distinct plant varieties. To qualify for a plant patent, the plant must not be a tuber-propagated plant, must not exist in an uncultivated state, and must be capable of asexual reproduction.
It’s important to note that, as of now, India does not provide for plant patents. However, you can apply for them in other countries like Australia, the USA, and several European nations.
Types of Patent Applications under the Patent Act, 1970
1. Provisional Application
A provisional application is a preliminary filing used to claim priority. Inventors often use this type of application when they need more time to refine their invention. It’s crucial because India follows the ‘First to File’ system, and early filing prevents related inventions from becoming prior art.
2. Ordinary or Non-Provisional Application
An ordinary or non-provisional application is filed when there is no need to claim priority. It must include a complete specification detailing the invention.
3. Convention Application
A convention application is filed in the Indian Patent Office within 12 months of the initial filing in a convention country. It allows applicants to claim priority based on a similar application filed in a convention country.
4. PCT International Application
A PCT (Patent Cooperation Treaty) international application streamlines the patent application process across many countries. This approach is valid in up to 142 countries, simplifying the process for global protection.
5. PCT National Phase Application
This application is filed in each country where the inventor wishes to seek protection. It must be filed within 30 or 31 months from the priority date or the international filing date, whichever is earlier.
6. Application for Patent of Addition
When an applicant makes an improvement or modification to an invention already described in the main application, they can file a patent of addition. This type of patent can only be granted after the main patent is granted.
7. Divisional Application
When a patent application claims more than one invention, the applicant can file divisional applications to separate each invention. The priority date for each divisional application remains the same as that of the parent application.
Remember that the term of a patent for a divisional application is twenty years from the date of filing of the main application.
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