If you are an inventor or budding inventor, you might be having lot of questions in your mind before marketing your invention, such as how to obtain patent for my invention ? Is my invention patentable? Can I file patent by myself? etc. There are certain basic guidelines are already known to the patent practitioners to help the inventors. This article will help the inventors and entrepreneurs.
you can file using efiling
with class 3 digital signature and any of the identification proof
The Patent System of India
Intellectual Property Rights:
Intellectual Property Rights are statutory rights once granted allows the creator(s) or owner(s) of the intellectual property to exclude others from exploiting the same commercially for a given period of time. It allows the creator(s)/owner(s) to have the benefits from their work when these are exploited commercially. IPR are granted to an inventor or creator, designer in lieu of the discloser of his/her knowledge.
Governing Laws in India for IPR as follows:
1. Patent Act 1970
2. Trade Marks Act (1958 original) 1999
3. The Copyright Act 1957
4. The design Act 2000
5. Geographical Indication of Goods (Registration and Protection) Act 1999
6. Plant Variety and Farmers Right Protection Act 2001
What is an invention/innovation?
An invention means: a new product or process involving an inventive step and capable of industrial application.
An Innovation means: The successful exploitation of new ideas in the form of a useful machinery or process, by any person, using own intellect is called as innovation. Every innovation may not be patentable invention but every invention is an innovation.
All the inventions are the innovations and are patentable, but all the innovations are not the patentable inventions.
The Patent System
A patent is a contract between the inventor or applicant for the patent and the State, whereby the inventor or applicant gets a monopoly from the State for a certain period in return for disclosing full details of the invention. The patent system thus ensures that information on new inventions is made available for eventual public use so as to encourage technical and economic development and discourage secrecy.
If an inventor or company has an invention, which they consider to be novel and inventive, they may apply for a patent. This may be granted only after a detailed examination by a patent office. Once the patent is granted the inventor or applicant has the sole right to make, use or sell the invention for a limited period.
This period is usually twenty years.
There can also be confusion about what exactly can be protected by the patent system. Patents can only be applied to inventions. These usually have an industrial dimension. An invention is normally a new product, which involves a new principle of operation or an improvement to an old principle. Alternatively it may refer to a new or improved industrial process. Things, which do not involve manufacture, are not usually considered to be inventions. For example, a new scientific theory or a new surgical procedure would not be considered to be patentable for this reason.
Novelty and Inventiveness
In order to be suitable for patenting, an invention must be novel and inventive. An invention is considered to be novel if it has not been disclosed to the public at the time that the patent application was made. As long as the date of the patent application precedes any disclosure of details of the invention to the public, the invention can be validly patented. If however, details of the invention have been disclosed to the public before applying for a patent, then the invention is no longer
considered to be novel in a patenting sense and it will not be possible to protect it validly through the patent system.It is important to be aware of the danger of premature disclosure of details of an invention. Even after a patent application has been filed, details of the invention should only be disclosed as part of a planned programme of commercial exploitation.Another requirement for a valid patent is inventiveness. This means that the invention must contain an inventive step. This can be the most difficult thing to show. A patent examiner may decide that the invention is obvious i.e. that somebody knowledgeable in the subject area, when familiarised with all earlier patents or other technology in the area, would have immediately been led to the same conclusion.
Commercialization of Inventions
Many inventors feel that filing a patent application is the most important and first thing they must do once they have an idea. This is rarely the case. Patenting an invention is not the only consideration and rushing to file an application may actually be the wrong thing to do first.Patents are of no value unless the commercial worth of the product or technology can be demonstrated and exploited. Many patentable inventions have failed not because they didn't work, or because they had been invented before, but because the inventor was unable to exploit them commercially. Inventing is increasingly being seen as a business. You must invest in the business if you wish to make a
return, and management and marketing skills are every bit as important as technical skills. If the inventor does not have all the skills required, it may be necessary to put together a team or partnership to exploit the project or to license the invention to an existing company who already has related products. If one does successfully commercialise an invention however the rewards can be substantial. A number of successful companies' world over own patents, which protect them against, copied products home or imported. This is an important factor in present day international trade. Most other traditionally used barriers to trade are being removed in the interests of fair competition. Patents are one of the few mechanisms that companies can legally use to protect their market share.
Having foreign patents also allows Irish companies to protect their products in export markets.
Where a product is unsuitable for export because of distance, cost or other factors, a licensing strategy can be used. The Indian company can use the patents to license the manufacturing/marketing rights for their invention to a foreign manufacturer. In return they receive a royalty, which increases their profits. Licensing for both the home and export markets to Indian and/or foreign companies is also the appropriate strategy for inventions made by non-manufacturing companies or by universities and colleges.
To succeed, an inventor does not have to have a great deal of business or technical expertise. He/she must however adopt a businesslike approach to the project. The first thing is to realise that there are several stages in the inventive process. It is vital to realise what stage one is at and what one needs to do next.
The stages of development of a successful invention are:
•Identification of a problem that needs to be solved.
•Inventing a solution to the problem, which works.
•Developing a prototype or being able to demonstrate the invention to prove how it works.
•Filing a patent application to protect the invention so that it can be disclosed to other people.
•Arranging the manufacturing and marketing of the invention either through one's own company or through licensing.
•Each stage requires its own particular expertise and resources. It is essential that the early stages are satisfactorily completed before moving on. Experience shows that taking short cuts does not pay. For example, it is hard to get investors or potential licensees to appreciate the benefits of a particular invention if the prototype is very crude and does not work properly. Similarly there is little point in filing a patent application until one is satisfied that the invention can be shown to work. There can be some
overlap between the last two stages however. If it is possible to make some progress with manufacturing and marketing without compromising the patent position, then one should do this. As mentioned elsewhere, very often the later one files the patent application the better.
Disclosing an Invention
Details of an invention should not be disclosed to outsiders until such time as a patent application has been filed. However, many people make the mistake of filing patent applications too early. Because they are afraid that somebody else may invent the same thing, they file an application as quickly as possible without having any clear plan as to what they are going to do next. They then find that many
months pass before they are in a position to commercially exploit the invention, and they have not left enough time to obtain the necessary finance to cover international patent filings. In general, it is better to complete the development of the invention and file the patent application when it becomes necessary to make disclosures as part of a planned programme of commercial exploitation. If it is necessary to talk to technical specialists or others in order to obtain assistance during the development of the invention, this should be done on the basis of confidentiality. People should be informed that the information is strictly
confidential and asked to sign a simple document undertaking not to disclose the information until given permission to do so.
Adopting a proper commercialisation strategy involves considering all aspects at the same time, technical, commercial and legal. At the initial stages proper attention should be given to the technical aspects, but once the patent application is filed,the commercialisation should proceed as quickly as possible within the limited time scale provided by the patent system. Once an application has been filed in Ireland,applications in other countries must be made within twelve months if the best protection is to be obtained. As is explained below, an international patent programme can be a very expensive business. Funding for it from either private or public sources is unlikely to be obtained unless there are definite commercial plans for the invention which are well advanced. Setting up ones own manufacturing company or identifying potential licensees and reaching agreement with them can take time. A period of longer than twelve months is usually required to complete either of these activities. Thus if one has filed ones patent application too early one will inevitably run into financial difficulties in trying to keep it going
Another reason why it can be a mistake to file too early is that development of the invention may not be completed. Designs may change during development or other inventive features may be introduced. If the patent specification has been drafted too early it may not be possible to amend it to reflect the changes made. One can end up with a patent, which does not really cover the final commercial product.
People carrying out academic research are frequently under pressure to publish the results of their research for academic reasons. Researchers should, at all times, bear in mind the possibility of commercial results from their research. If a researcher sees a commercial application from his or her research, it would be wise to delay publication until a patent application has been filed.
Applying for a Patent
The first step that people usually take in applying for a patent is to file a preliminary application in one country. When the application is filed, the date of application is recorded and this is called the "priority date". The first application can be quite basic and does not have to include a set of claims (see below). It is still an important document and specialist advice from a patent agent should be obtained in preparing it.
Most countries are signatories to an international convention, which guarantees that the priority date of an invention filed in one country will be respected in other countries, provided an application is filed in the other countries within twelve months of the date of filing the first application. This is why the first document filed can be very important later.
The system of filing an application in one country initially can be of great benefit to inventors provided they have timed it correctly. It allows up to twelve months before foreign applications must be filed. During this time the inventor can assess the commercial prospects of the invention, carry out improvements on it, and arrange the necessary finance for international patenting and commercial exploitation through manufacture and sale. This period is also used to assess the market potential for the invention in various countries and to decide in which countries the expense of patenting is justified. Note though the comments earlier about the dangers of underestimating the time it takes to do these things and the dangers of filing too early
The patent system is complex, and great skill is required in reducing the principle of an invention to words, which will have legal effect. Patent agents have detailed knowledge of the complex procedures in the various foreign patent systems and work with other patent agents throughout the world to obtain patent protection for an invention in different countries
A patent specification is written in a certain format, which may not be immediately obvious to the casual reader. The specification usually contains a preamble, which describes the background to the invention. Then comes a statement of invention, which is a legal statement of the scope of the onopoly sought. This is followed by a detailed description of the invention, usually drawings or examples of how the invention is carried out. The final part of the specification includes a set of claims.These are not normally required in the preliminary application but are a vital part of the final document. A claim in this sense has nothing to do with the conventional use of the word, and does not relate to the advantages or performance of the invention.A patent claim is where the patent agent sets out the scope or extent of the monopoly, which he claims on behalf of the inventor. In other words, one is claiming a territory of technology within which other people may not stray without infringing the patent. The scope of the patent is very important. One can imagine that a patent for a completely new type of engine would have a very broad scope whereas a patent for an improvement in one component of that engine might be quite limited in scope.
When patent specifications have been filed in the various countries the patent examiners in those countries examine them. These examiners carry out a search through previous patent specifications and other literature in order to ascertain if the invention is novel. They also look at the question of inventiveness in relation to the "prior art". As a result of the patent search, an examiner may feel that certain features of the invention have already been disclosed in previous specifications. correspondence then ensues between the patent examiner and the patent agent until the examiner is satisfied that the claims for the patent are allowable. This can often mean an amendment or narrowing of the scope of the patent claims until the Patent Office in question is satisfied that it does not overlap the "territory of technology" claimed by previous inventors. This stage of the patenting procedure is called "prosecution" and can involve the inventor or applicant in considerable expense depending on the amount of work required to be done by the patent agent. As part of the patent examination procedure, the specification filed by the applicant is published, usually eighteen months after the priority date. The Patent Office also publishes a list of previous patents, which were found to be of
relevance in the patent search. Thus, even if an inventor has not disclosed the invention in any way up to this point, the patent system itself will make a disclosure and destroy its novelty at this time. It is for this reason that inventions once disclosed cannot be the subject of subsequent patent applications either by the inventor or by anybody else.
When the Patent Office has satisfied itself concerning the scope of the claims,which are to be granted, notice of allowance of the patent will be issued and the patent will be granted. In some countries (not in Ireland) there is a period however during which interested parties may oppose the granting of the patent by lodging their grounds for opposition with the Patent Office. If no one is successful in opposing the grant of the patent, the Letters Patent Document is issued and the patent comes into force.
If anybody attempts to make, use, or sell an invention, which is covered by a patent which is in force in a certain country, he or she may be sued in that country for infringement by the patentee. If infringement is proved, damages may be awarded to the owner of the patent. Patent litigation is notoriously expensive, and is not entered into lightly. The greater the commercial potential of an invention, the higher is the chance that the patent will be infringed or contested. The fact that a patent is granted does not automatically mean that the inventor is given full protection. A granted patent can in certain circumstances be invalid because certain information did not come to the attention of the patent examiner during the course of the examination. This could show, for example, that the invention was not in fact novel. A court decision may ultimately be needed before the inventorfinds out whether he is protected or not