Intellectual Property Specialist

Indian Patent System

LEGISLATION :

Patents Act, 1970 and The Patents Rule 2003 and amendments thereof

GRACE PERIOD FOR PRIOR DISCLOSURE:

Public disclosure: First application not later than 12 months after the first disclosure.

DURATION OF PROTECTION

20 years.

TIME FRAME FOR OBTAINING REGISTRATION:

24 to 48 months from filing in India.

INTERNATIONAL TREATY SIGNED: :

1. Paris Convention (Industrial Property), since December 1998

2. Patent Cooperation Treaty since December 1998

3. Budapest Treaty (Deposit of Micro-organisms), from December 2001.

4. WTO: Member and Signatory to Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, since January 1995.

Eligibility

PATENTABLE INVENTIONS: :


The basic criteria for an invention to be patentable are the following:

(1) An invention must be novel

(2) Has an inventive step and

(3) Is capable of industrial application

NON-PATENTABLE INVENTIONS: :


Inventions relating to Atomic Energy and following are not inventions within the meaning of Patent Act,–

(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

(b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

(c) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;

(d) the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;

(e) substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(h) a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

(j) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

(k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;

(o) topography of integrated circuits;

(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

Registration Procedure

Step 1: Trademark Search

A Trademark search is the first step in the Trademark registration procedure. A search is to be conducted in order to determine the uniqueness of the mark, and its similarity to other, pre-existing marks. It is very much advisable to conduct a Trademark search before registering or using a Trademark. Without a search, there are chances for being sued for Trademark infringement, the rejection of the Trademark application, and a third-party challenging the Trademark application.

Step 2: Filing of Trademark Registration Application:

The second step in the Trademark registration procedure is filing of Trademark registration application after getting the positive search report. After receiving of the acknowledgement the applicant can use the symbol TM along with the applied mark. If the application for the registration of Trademark filed through e-filing system of Trademark registration than the acknowledgement of the application along with the government receipt generate immediately after the filing. If the application for the registration filed manually than the acknowledgement provided only after 15-20 days.

Step 3: Examination of Trademark Registration Application:

Third step in the Trademark registration procedure is issuance of examination report by the Trademark office. Upon receipt of Trademark registration application, the Registrar issues an examination report after examining the application. Applications are examined to ensure that they comply with the requirements of the law and that they do not conflict with marks which are already registered, or which are the subjects of earlier pending applications.

Step 4: Publication of Mark in Trademark Journal:

Fourth step in the Trademark registration procedure is the publication of the mark in the Trademark journal. If the Registrar consider the mark as a distinctive mark or after the removal of the objections, if any, raised by the Registrar he may cause the application to be advertised in Trademark journal. If no opposition to the mark is filed within 90 days from the date of publication, or 120 days if request for extension of time is given to the opponent and opposition is refused, mark proceeds for the acceptance of Registration.

Step 5: Trademark Registration:

Fifth step in the Trademark registration procedure is the issuance of Trademark registration certificate. After the application for Registration of Trademark is accepted by the Registrar, the Registrar shall issue to the applicant a Certificate of Registration under the seal of the Trademark Registry.

Required Documents & Information

The following information and/or documents are required to file a Patent Application in India:-

1. Name, Nationality and Address of the applicant/inventor

2. Specification and claims;

3. Formal drawings;

4. Abstract of Invention and drawing

5. Priority document; A certified priority document for each priority claimed.

5. Priority document; A certified priority document for each priority claimed.

5. Priority document; A certified priority document for each priority claimed.

Examination Procedure


After filing Patent Application in India, a Request for Examination is filed with the Patent Office Thereafter the application is examined by patent office and objections, if any, are raised thereto. After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes. The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

After filing Patent Application in India, a Request for Examination is filed with the Patent Office Thereafter the application is examined by patent office and objections, if any, are raised thereto. After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes. The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

After filing Patent Application in India, a Request for Examination is filed with the Patent Office Thereafter the application is examined by patent office and objections, if any, are raised thereto. After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes. The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

After filing Patent Application in India, a Request for Examination is filed with the Patent Office Thereafter the application is examined by patent office and objections, if any, are raised thereto. After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes. The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.

On examination the Examiner will issue First Examination Report. If the Examiner raises objections, the applicant must comply with all the requirements within 12 months from the date on which the statement of objections is issued.

Once all the requirements are complied with, the patent office will intimate the grant of patent to the applicant. Such granted patent shall be published in Patent Office Journal and shall remain open for opposition for a period of 12 months from the date of publication in journal.

FLOW CHART – PATENT EXAMINATION IN INDIA

Patenting Trademark Industrial Design Copyright Commercialization

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