A patent is a legal property granted by the government that confers a right for a limited period to anyone who makes an invention of a product or process that meets the conditions of novelty, non-obviousness and industrial use. It is a territorial right allowing the inventor to exclude anyone else from making, using or selling their invention.
India has taken firm steps towards strengthening the patent grant system in the country.
- As per Indian Patent Act, 1970, inventors can protect their inventions in India for a term of 20 years from the date of filing the patent application.
- Under the Patent Cooperation Treaty (PCT), the Indian Patent Office has been identified as an International Preliminary Examining Authority and an International Searching Authority (IPEA/ISA) by World Intellectual Property Organization in October, 2007.The status has been operationalized since 15th October, 2013, thereby joining an elite group of 17 countries.
- India is one of the top 10 countries w.r.t. the number of patents filed per year.
Despite all this progress, there are still some myths associated with patents and patenting in India.
Myth #1: Ideas can be patented
An idea, i.e., a mere concept or thought cannot be patented. A system, a process, a tool, a machine or an apparatus to implement the idea can be patented. For example, in early 1900s, when there were no airplanes, just an idea that people can fly overseas in a metal container was a non-patentable subject matter, whereas, the design of an airplane or its components would have been patentable subject matter.
Patents are only granted for a new and useful product, process, machine, manufacturing product, or composition of matter. Also, in order to get a patent granted, it is required that the patent application describes the invention in a manner that the person who reads it is enabled to practice the invention.
Myth #2: A patent, once granted is enforceable around the world
Patent protection is territorial by law. So, if one needs protection in multiple countries, one has to file the patent application in each of these countries. There is no such thing as a global patent and/or a world-wide patent.
Therefore, if you have a patent in India, but not in the USA, then anyone can legally make, use or sell your invention in the USA. You will not be entitled to any royalties out of the exploitation of your invention in the USA.
Myth #3: A patent filed in India can be extended to foreign countries after it is granted
One has only 12 months to take an application to foreign countries from the date of filing in the original country of invention. So, if you file an application in India today you can only take the application to US, Europe, etc. within the next 12 months. And usually it takes 3 to 4 years to get a grant, therefore, you will have to make the decision about going international within 12 months.
This period of 12 months can be extended to 30 or 31 months by filing a PCT application.
Myth #4: I can get a patent on the technology I published in a paper 1.5 years back
For an invention to get granted as a patent, it has to satisfy the criteria of novelty, i.e., it should be something absolutely new that is not known in the public domain.
Accordingly, if you publish something today you will not get a patent on it if you file an application tomorrow, as the invention will already be in the public domain at the time of filing.
Some countries do exclude inventor’s own publication made less than 12 months before the filing date from the prior art. However, as a thumb rule in India, do not publish anything that you may want to file a patent for at a later stage.
Myth #5: A patent once filed gives the owner the sole right to make, use, and sell their invention
It certainly is a myth and the reality is that it gives the owner the right to exclude others from making, using, and selling their patented invention. For example, if you invent a new shape of a ceramic cup, then to make and sell the ceramic cups with this new shape you may need to take license from inventors / companies who have patents on the ceramic material used for that cup. At the same time, if someone else wants to sell the same cup with your design, they will need to take the license from the material patent owner as well as from you.
Myth #6: Getting a Provisional Patent that is good for 1 year
There is nothing like a provisional patent, but, there is a provisional patent application. A provisional patent application is a relatively easier patent application format that can be filed relatively quickly. People file provisional applications to secure a priority date on their invention as quickly and cost-effectively as possible, i.e., by eliminating thedelay and expense that could have been caused due to the time/ money spent on an expertly drafted regular patent application.
The provisional patent application has to be converted into a non-provisional (regular) patent application within 12 months; otherwise, the provisional patent application becomes void.
The provisional patent application is never published. Therefore, if you do not convert your provisional application into a non-provisional application in 12 months and if someone else files a patent application for a similar invention in the 13th month, your provisional application will not act as a prior art against this new application.
Myth #7: I have seen this product in Germany, but it has not yet been launched in India. I can get a patent for it in India.
This is not possible. For an invention to be patented, it has to be novel at a global level, i.e., it should not be in the public domain anywhere else in the world. Accordingly, you cannot get a patent on that invention in India now.
However, if that invention is not patented in India, then you can legally make, use or sell it in India without requiring to pay any royalties to anyone.
Myth #8: Patents are not very popular in India and also not enforceable here
This is again a myth. India ranks 8th worldwide in terms of number of patent applications filed per year. India is ahead of countries like, Canada, Australia, Singapore, Italy, Sweden, etc.
Almost all big global companies are strengthening their patent portfolios in India.
Regarding enforcement of patent rights, there are several examples in which even individual inventors with strong patents have been able to get injunctions against mammoth organizations for potential infringement.
This is actually a very good time for Indian innovators to strengthen their base for future by establishing a strong patent portfolio in India. Soon, it is going to be very competitive.
Myth #9: Getting a Patent is very expensive
With the increase of awareness about patents in India and the corresponding increase in the skill-set related to patent drafting and prosecution, the professional fees for drafting and filing patent applications in India is well within the reach of individual inventors.
The official filing fee charged by the patent office starts at INR 1,600 per application for individual inventors. Other fees do come into picture in the course of a patent life cycle; however, even these are nominal.
This is a guest post by Anant Kataria, Co-Founder and CEO, Sagacious Research, a global patent research, licensing & commercialization firm/organization). They can be reached at @IP_Updates on twitter and here on LinkedIn
SAGACIOUS IP is a global player offering Comprehensive IP solutions, through a robust team of techno-legal experts, using state-of-the-art tools to deliver cost-optimized, risk-mitigated results to Corporates, Institutions and leading Patent Law firms. They have successfully conducted over 3000 Prior Art Searches and Over 2000 other IP support projects in over 92 jurisdictions and 16 languages, Sagacious has established itself as a team of “The Patent Search Experts”. Such rich experience along with state-of-the-art technologies has enabled them to define policies, procedures and practices to ensure cost effective, efficient, error free and timely delivery of Patent research services.