Unit- 1

Intellectual property rights & Patents

Intellectual property rights are the legal rights that cover the privileges given to individuals
who are the owners and inventors of a work, and have created something with their intellectual
creativity. Individuals related to areas such as literature, music, invention, etc., can be granted
such rights, which can then be used in the business practices by them.
The creator/inventor gets exclusive rights against any misuse or use of work without his/her
prior information. However, the rights are granted for a limited period of time to maintain
equilibrium.
Intellectual Property
Intellectual property is an intangible creation of the human mind, usually expressed or
translated into a tangible form that is assigned certain rights of property. Examples of
intellectual property include an author's copyright on a book or article, a distinctive logo design
representing a soft drink company and its products, unique design elements of a web site, or a
patent on the process to manufacture chewing gum.
Intellectual Property Rights
Intellectual property rights (IPR) can be defined as the rights given to people over the creation
of their minds. They usually give the creator an exclusive right over the use of his/her creations
for a certain period of time. Intellectual property (IP) refers to creations of the mind: inventions,
literary and artistic works, and symbols, names, images, and designs used in commerce.

What is the need for protection of Intellectual property rights?

There are a few purposes behind advancing and ensuring protected innovation. Some of them
are: Progress and the benefit of mankind stay in the capacity to make and design new works in
the field of innovation and culture. IP insurance supports production, dispersion, and
divulgence of the creation to the general population, as opposed to staying quiet about it.
Advancement and security of licensed innovation advance monetary advancement create new
openings and businesses and improves personal satisfaction. Licensed innovation helps in
adjusting between the pioneer’s advantages and open intrigue, giving a situation where
advancement, imagination, and development can prosper and profit all.

Economic Benefits of Intellectual Property Rights

The subject of how Intellectual Property Rights influence the procedures of monetary
improvement and its development is mind-blowing and dependent on different factors. In
principle, more grounded frameworks for the insurance of licensed innovation could either
improve or constrain monetary development. Eventually, the proof is rising that more grounded
and increasingly certain licensed innovation law could well build the monetary development
and cultivate advantageous change, along these lines improving formative possibilities, on the
off chance that they are organized in a way that advances compelling and dynamic challenges.
As the worldwide assurance system reinforces because of Trade-Related Aspects of Intellectual
Property Rights, various inquiries emerge about the effect on possibilities of financial
development. For a ton of reasons, it is unimaginable to unhesitatingly say that the new system
will raise monetary development and improve the advancement process. There are two
significant reasons. First to start with, numerous factors influence the development of manners
that can command the effect of TRIPS. Second, the monetary hypothesis brings up that licensed
innovation rights could have a lot of consequences for development, some positive and some
negative.
For any business to cut a specialty for itself, development has become the spine, particularly in
the serious condition today. Development clears the way for the making of licensed innovation
and utilizing this protected innovation gives your business a serious edge while additionally
contributing enormously to its prosperity. Protected innovation is an important asset for every
single business, particularly those contributing huge totals of cash towards innovative work so
as to make one of a kind items and administrations.
To receive the financial rewards of IPR, organizations ought to proactively execute licensed
innovation arrangements. This permits them to distinguish novel, one of a kind manifestations
and furthermore increment their income. It is likewise essential to characterize the licensed
innovation objectives plainly as it can assist organizations with accomplishing their business
goals.
As business livelihoods develop, IP engineers can make techniques to ensure the special parts
of their manifestations. Advancements can be additionally cultivated by investigating more up
to date geologies. To accomplish this, organizations can go into authorizing bargains or
potentially joint dares to produce novel arrangements that can fulfill the necessities of their
objective clients.

IPR on Health Agriculture and Genetic resources in india ------

The developmental impact of intellectual property rights (IPRs) on genetic resources (GR) and
associated traditional knowledge (TK) has been intensely discussed internationally for more
than a decade. In this respect, plant GR for food and agriculture, GR for health as well as the
related rights of indigenous and local communities possess particular importance for poverty
reduction. The EU can play an important role in advancing regulatory action in this field that
enhances the effectiveness of the fight against poverty, both domestically and at the
international level. The 2010 Nagoya Protocol to the Convention on Biological Diversity that
addresses “biopiracy” related to GR/TK is awaiting ratification and full and effective
implementation, which will, inter alia, require capacity building especially for least developed
countries. Another important contribution to combating biopiracy would be the establishment
of a requirement to disclose in patent applications the source of any GR/TK used, as currently
under negotiation in the World Trade Organisation and the World Intellectual Property
Organisation. The rights of indigenous and local communities, especially with respect to their
TK, deserve particular protection both in the EU and internationally, to be designed in
consultation with these communities. IPRs on seeds and medicines should not be allowed to
compromise the human rights to food and health. There is a need for advancing research and
development on seeds and medicines that are targeted at low-income populations in developing
countries.

IPR in Agriculture
Scientific advances in plant breeding led to the “Green Revolution”, regarded as one of the
most important achievements to feed the world during the last century. Mostly staple cereal
crops, particularly wheat, rice and maize, were targeted by the “Green Revolution”. Towards
the end of the 20th century 370 kg of cereals per person were harvested versus to only 275 kg
in the mid-20th century (i.e., in excess of 33% per capita gain). In other crops the gains since
the early 1960s were about 20%. In simple language, this has helped alleviate starvation and
malnutrition in almost 1 billion people. However, the “Green Revolution” approach appears to
have been exploited close to its limits, and other alternative approaches are required to continue
improving plants and livestock for the agriculture of the 21st century. This will be very
important considering that about 12% of the world’s land surface grows crops and that the per
capita area to support food production will decline from 0.44 ha in 1961 to 0.15 in 2050.

Biotechnology offers today new and better means to complement classical breeding tools for
the genetic improvement of both crops and livestock. Biotechnology offers new means for
achieving a higher intensity of selection, e.g. through in vitro techniques, or for a more
objective selection of individuals through genetic markers. Likewise, genetically engineered
(so-called transgenic or GMO) plants offer new methods for inserting new genes to the
breeding pool, thus enhancing the quality of the new variety. Let us go on to discuss some
examples of the new biotechnology and indicate some of the value these new products may
have for the developing world.

Key Applications
The most common and successful applications of biotechnology for crop and livestock
improvements include:
 Cell and Tissue Culture. This is the growing of plant cells as a way of producing
uniform individuals or for shortening the number of years needed to produce and release
new varieties. Tissue culture techniques have led to dramatic production increases in
cassava, yams, bananas and plantains, palms, and potato to mention only a few.
 Genetic Engineering for pest and disease resistance. There are now hundreds of
millions of acres of genetically engineered crops grown in North America and
Argentina and increasing interest is being shown in these in some developing countries,
particularly China.
 DNA fingerprinting, the same as used in forensic science, is used to gain better insight
into pathogen diversity that may allow pre-empting breakdowns of host plant resistance
to pests and diseases.
 Better management of seed storage facilities, so-called gene banks, and greater
knowledge of biodiversity can be achieved with the aid of molecular-aided analyses.
The more we know about this genetic diversity, the more we can apply it to produce
higher yielding, more resistant materials.
 Finding the location of genes on a chromosome with DNA markers will allow scientists
to custom make plants and animals with specific disease and pest tolerance.
 New tools to test for pests, diseases and to detect dangerous food contaminants. These
techniques will help us produce not only more food, [but food that is nutritious and safe
to eat since it may contain lower levels of toxins and/or pesticides]

Major Constraints and Opportunities

Biotechnology may provide new methods to add value to raw agricultural products. For
example growing edible portions of food crops in vitro or converting plants into producers of
high value chemicals. “Pharming” (derived from Pharmaceutical) is the term that has been
coined to refer to a new system in which medicine production capabilities are incorporated into
the plant. A research group at The Boyce Thomson Institute at Cornell University has already
engineered banana plants for production of vaccines. The plant serves as a medicine factory.

The identification, isolation and cloning of new genes controlling specific characteristics will
also facilitate the development of a more stable, diversified germplasm with improved
resistance to diseases and pests, stress tolerance, better food quality, and higher productivity.
For example genes allowing a reduced crop cycle or modified plant structure will provide
pathways for new cropping systems.
Nonetheless, conventional crossbreeding will be still required for an appropriate testing and
further transfer of these genes to the advanced breeding pools of the crop. Furthermore, seed
delivery systems of improved genotypes should be in place to promote the utilization of new
cultivars, which will enhance and stabilize the agricultural production, farm income, and farm-
family welfare. In brief, the new tools of biotechnology alone cannot provide the answer to
genetic improvement, but they are facilitating and accelerating the pace in the development of
new cultivars.
Some of the current achievements of biotechnology applications for improving agriculture are
surpassing the original expectations and the outlook appears to be even more promising.
However, the fulfillment and impact of biotechnology does not depend only in the
demonstrated research advances and technology ensuing from their applications but on both
favorable regulatory frameworks by national governments (or through regional agreements)
and positive public acceptance.

Categories of Intellectual Property

One can broadly classify the various forms of IPRs into two categories:
IPRs that stimulate inventive and creative activities (patents, utility models, industrial
designs, copyright, plant breeders’ rights and layout designs for integrated circuits) and
IPRs that offer information to consumers (trademarks and geographical indications)
IPRs in both categories seek to address certain failures of private markets to provide for an
efficient allocation of resources IP is divided into two categories for ease of understanding:
1. Industrial Property
2. Copyright
Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and
Copyright, which includes literary and artistic works such as novels, poems and plays, films,
musical works, artistic works such as drawings, paintings, photographs and sculptures, and
architectural designs. Rights related to copyright include those of performing artists in their
performances, producers of phonograms in their recordings, and those of broadcasters in their
radio and television programs
Intellectual property shall include the right relating to:
 Literary, artistic and scientific works;
 Performance of performing artists;
 Inventions in all fields of human Endeavour;
 Scientific discoveries;
 Industrial designs;
 Trademarks, service marks and etc;
 Protection against unfair competition.
TYPES OF INTELLECTUAL PROPERTY
The different types of Intellectual Property Rights are:
 Patents
 Copyrights
 Trademarks
 Industrial designs
 Geographical indications of goods
 Trade Secrets
TRADEMARKS
According to section 2, sub-section (1) of the Trade Marks Act 1999, ”Trade Mark” means a
mark capable of being represented graphically and which is capable of distinguishing the goods
or services of one person from those of others and may include shape of goods, their packaging
and combination of colors.
Trade mark registration is an effective and economic way of ensuring your brand is protected.
Registration provides a safeguard against third party infringement and often acts as an effective
deterrent against third parties considering or contemplating infringement. Failure to protect
brand may reduce its value, and could damage your business’ reputation. It is also important to
be attentive to the activities of your competitors. If you suspect or witness your brand being
infringed it is best to take action as soon as possible. The longer the infringing activity exists,
the more difficult to maintain the registered trademark and chances of trademark becoming
generic.
Genericide is the term used to describe the death of a trademark that results from the brand
name becoming the name of the object itself.
COPYRIGHTS
1847 is the First Copyright law Enactment in India during British Regime. The term of
copyright was for the lifetime of the author and 60 years counted from the year following the
death of the author
Copyright law is designed to protect interests and balance the rights of the following stake
holders
 Authors/ Creators
 Publishers/ Entrepreneurs
 Users /Audiences
Indian Copyright Act is the one of the best Copyright enactment in the world.
The Copyright Act 1911, while repealing earlier statues on the subject, was also made
applicable to all the British colonies including India. In 1914, the Indian Copyright Act was
enacted which modified some of the provisions of Copyright Act 1911 and added some new
provisions to it to make it applicable in India. Copyright Act, 1911 was in existence in India
till the new Copyright Act, 1957 was introduced in India Post Independence. In India, the
Copyright Act, 1957 (as amended in 1999), the Rules made there under and the International
Copyright Order, 1999 govern Copyright and neighboring rights. This Act has been amended
five times i.e 1983,1984,1992,1999 and most recently in 2012.
What can be protected under Copyright?
Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording
works.
Literary works such as novels, poems, plays, reference works, newspapers and computer
programs; databases; films, musical compositions, and choreography; artistic works such as
paintings, drawings, photographs and sculpture; architecture; and advertisements, maps and
technical drawings.
PATENTS
Patent is a grant for an invention by the Government to the inventor in exchange for full
disclosure of the invention. A patent is an exclusive right granted by law to applicants /
assignees to make use of and exploit their inventions for a limited period of time (generally 20
years from filing). The patent holder has the legal right to exclude others from commercially
exploiting his invention for the duration of this period. In return for exclusive rights, the
applicant is obliged to disclose the invention to the public in a manner that enables others,
skilled in the art, to replicate the invention. The patent system is designed to balance the
interests of applicants / assignees (exclusive rights) and the interests of society (disclosure of
invention).
Meaning of ‘Invention’ under Patent
Law Sec.2(1)(J) - Invention” means a new product or process involving an inventive step and
capable of industrial application
There are three types of patents:
Utility patents may be granted to anyone who invents or discovers any new and useful process,
machine, article of manufacture, or composition of matter, or any new and useful improvement
thereof;
Design patents may be granted to anyone who invents a new, original, and ornamental design
for an article of manufacture; and
Plant patents may be granted to anyone who invents or discovers and asexually reproduces
any distinct and new variety of plant
TRADE SECRETS
A trade secret consists of any valuable business information. The business secrets are not to be
known by the competitor. There is no limit to the type of information that can be protected as
trade secrets; For Example: Recipes, Marketing plans, financial projections, and methods of
conducting business can all constitute trade secrets.
There is no requirement that a trade secret be unique or complex; thus, even something as
simple and nontechnical as a list of customers can qualify as a trade secret as long as it affords
its owner a competitive advantage and is not common knowledge. If trade secrets were not
protectable, companies would no incentive to invest time, money and effort in research and
development that ultimately benefits the public. Trade secret law thus promotes the
development of new methods and processes for doing business in the marketplace.
Protection of Trade Secrets: Although trademarks, copyrights and patents are all subject to
extensive statutory scheme for their protection, application and registration, there is no federal
law relating to trade secrets and no formalities are required to obtain rights to trade secrets.
Trade secrets are protectable under various state statutes and cases and by contractual
agreements between parties.
GEOGRAPHICAL INDICATIONS
GI is an indication, originating from a definite geographical territory. It is used to identify
agricultural, natural or manufactured goods produced, processed or prepared in that particular
territory due to which the product has special quality, reputation and/or other characteristics.

AGENCIES RESPONSIBLE FOR IPR REGISTRATIONS

(a) National IPR Agencies:

The office of the Controller General of Patents, Designs and trademarks (CGPDTM), a
subordinate Office under The Department for Promotion of Industry and Internal Trade
(DPIIT), carries out statutory functions related to grant of Patents and registration of
Trademarks, Designs and Geographical Indications. The registration of copyrights is
administered by the Registrar of Copyright Office, working under the CGPDTM. It functions
out of offices situated in Delhi, Kolkata, Mumbai, Chennai and Ahmadabad, while the Central
IP Training Academy is at Nagpur.
The appropriate office of the patent office shall be the head office of the patent office or the
branch office as the case may be within whose territorial limits. Residence of applicant or
Domicile; or their place of business; or the place where the invention actually originated.
The CGPDTM supervises the functioning of the following IP offices:
i. The Patent Office’s (including the Design Wing) at Chennai, Delhi, Kolkata & Mumbai.
ii. The Patent Information System (PIS) and Rajiv Gandhi National Institute of Intellectual
Property Management (RGNIIPM) at Nagpur.
iii. The Trade marks Registry at Ahmadabad, Chennai, Delhi, Kolkata & Mumbai.
iv. The Geographical Indications Registry (GIR) at Chennai.
v. The Copyright Office at Delhi.
vi. The Semiconductor Integrated Circuits Layout-Design Registry at Delhi.
Office Territorial Jurisdiction
Patent Office Branch, Chennai The States of Telangana, Andhra Pradesh,
Karnataka, Kerala, Tamil Nadu and the Union
Territories of Pondicherry and Lakshadweep
Patent Office Branch, Mumbai The States of Maharashtra, Gujarat, Madhya
Pradesh, Goa and Chhattisgarh and the Union
Territories of Daman and Diu & Dadra
and Nagar Haveli.
Patent Office Branch, New Delhi The States of Haryana, Himachal Pradesh,
Jammu and Kashmir, Punjab, Rajasthan, Uttar
Pradesh, Uttaranchal, Delhi and the Union
Territory of Chandigarh.
Patent Office, Kolkata The rest of India

INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES

There are a number of International organizations and agencies that promote the use and
protection
of intellectual property. Although these organizations are discussed in more detail in the
chapters to
follow, a brief introduction may be helpful:
International Trademark Association (INTA) is a not-for-profit international association
composed chiefly of trademark owners and practitioners. It is a global association. Trademark
owners and professionals dedicated in supporting trademarks and related IP in order to protect
consumers and to promote fair and effective commerce. More than 4000 (Present 6500
member) companies and law firms more than 150 (Present 190 countries) countries belong to
INTA, together with others interested in promoting trademarks. INTA offers a wide variety of
educational seminars and publications, including many worthwhile materials available at no
cost on the Internet (see INTA’s home page at http://www.inta.org). INTA members have
collectively contributes almost US $ 12 trillion to global GDP annually. INTA undertakes
advocacy [active support] work throughout the world to advance trademarks and offers
educational programs and informational and legal resources of global interest. Its head quarter
in New York City, INTA also has offices in Brussels, Shanghai and Washington DC and
representative in Geneva and Mumbai. This association was founded in 1878 by 17 merchants
and manufacturers who saw a need for an organization. The INTA is formed to protect and
promote the rights of trademark owners, to secure useful legislation (the process of making
laws), and to give aid and encouragement to all efforts for the advancement and observance of
trademark rights.

Berne Convention for the Protection of Literary and Artistic Works (the Berne
Convention) An International copyright treaty called the convention for the protection of
Literary and Artistic works signed at Berne, Switzerland in 1886 under the leadership of Victor
Hugo to protect literary and artistic works. It has more than 145 member nations. The United
States became a party to the Berne Convention in 1989. The Berne Convention is administered
by WIPO and is based on the precept that each member nation must treat nation must treat
nationals of other member countries like its own nationals for purposes of copyright (the
principle of “nation treatment”). In addition to establishing a system of equal treatment that
internationalized copyright amongst signatories, the agreement also required member states
to provide strong minimum standards for copyrights law. It was influenced by the French “right
of the author”.
Madrid Protocol It is a legal basis is the multilateral treaties Madrid (it is a city situated in
Spain) Agreement concerning the International Registration of Marks of 1891, as well as the
protocol relating to the Madrid Agreement 1989. The Madrid system provides a centrally
administered system of obtaining a bundle of trademark registration in separate jurisdiction.
The protocol is a filing treaties and not substantive harmonization treaty. It provides a cost-
effective and efficient way for trademark holder. It came into existence in 1996. It allows
trademark protection for more than sixty countries, including all 25 countries of the European
Union.
Paris Convention The Paris convention for the protection of Industrial Property, signed in
Paris, France, on 20th March 1883, was one of the first Intellectual Property treaties, after a
diplomatic conference in Paris, France, on 20 March 1883 by Eleven (11) countries. According
to Articles 2 and 3 of this treaty, juristic (one who has through knowledge and experience of
law) and natural persons who are either national of or domiciled in a state party to the
convention. The convention is currently still force. The substantive provisions of the
convention fall into three main categories: National Treatment, Priority right and Common
Rules.
An applicant for a trademark has six months after filing an application in any of the more than
160 member nations to file a corresponding application in any of the other member countries
of the Paris Convention and obtain the benefits of the first filing date. Similar priority is
afforded for utility patent applications, although the priority period is one year rather than six
months. The Paris Convention is administered by WIPO.
North American Free Trade Agreement (NAFTA) came into effect on January 1, 1994, and
is adhered to by the United States, Canada, and Mexico. The NAFTA resulted in some changes
to U.S. trademark law, primarily with regard to marks that include geographical terms. The
NAFTA was built on the success of the Canada-U.S Free Trade Agreement and provided a
compliment to Canada’s efforts through the WTO agreements by making deeper commitments
in some key areas. This agreement has brought economic growth and rising standards of living
for people in all three countries. General Agreement on Tariffs and Trade (GATT) was
concluded in 1994 and is adhered to by most of the major industrialized nations in the world.
The most significant changes to U.S intellectual property law from GATT are that nonuse of a
trademark for three years creates a presumption the mark has Smartzworld.com
Smartworld.asia jntuworldupdates.org Specworld.in been abandoned and that the duration of
utility patent is now twenty years from the filing date of the application (rather than seventeen
years from the date the patent issued, as was previously the case).

THE INCREASING IMPORTANCE OF INTELLECTAL PROPERTY RIGHTS

 Protecting Intellectual Property Rights
 Technology has led to increase awareness about the IP
 Some individuals and companies offer only knowledge. Thus, computer consultant,
advertising agencies, Internet companies, and software implementers sell only
brainpower.
 Domain names and moving images are also be protected
 More than fifty percent of U.S. exports now depend on some form of intellectual
property protection.
 The rapidity with which information can be communicated through the Internet has led
to increasing challenges in the field of intellectual property.
 The most valuable assets a company owns are its Intellectual property assets
 Companies must act aggressively to protect these valuable assets from infringement
(breaching, violation of law) or misuse by others
 The field of intellectual property law aims to protect the value of such investments
INTELLECTUAL PROPERTY SYSTEM IN INDIA
In 1485 the first system of protection of intellectual property came in the form on Venetian
Ordinance historically. In England in 1623 it was followed by Statue of Monopolies, which
extended rights of patents for Technology Inventions. In 1760, patent laws were introduced in
The United States. Between 1880 and 1889 patent laws of most European countries were
developed. In the year 1856 in India Patent Act was introduced which remained in force for
more than 50 years which was later modified and revised and was called “The Indian Patents
and Designs Act, 1911”. A complete bill on patent rights was enacted after Independence in
the year 1970 and was called “The Patents Act, 1970”.
Specific statues protected only specific type of intellectual output; till very recently only four
forms were protected. The protection was in the form of grant of designs, patents, trademarks
and copyrights. In India, copyrights were regulated under the Copyright Act, 1957; trademarks
under Trade and Merchandise Marks Act 1958; patents under Patents Act, 1970; and designs
under Designs Act, 1911.
The establishment of WTO and India also being signatory to the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), many new legislations were passed for the
protection of intellectual property rights to meet the obligations internationally. These included
the following: Designs Act, 1911 was changed by the Designs Act, 2000; Trade Marks, called
the Trade Mark Act, 1999; the Copyright Act, 1957 was revised number of times, the latest is
known as Copyright (Amendment) Act, 2012; and the recent amendments made to the Patents
Act, 1970 in 2005. Other than this, plant varieties and geographical indications were also
enacted in new legislations. These are called Geographical Indications of Goods (Registration
and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001
respectively.
Intellectual property rights have developed to a stature from where it plays an important role
in developing economy globally, over the last fifteen years. In 1990s, laws and regulations
were strengthened I this area by many countries unilaterally. In the multilateral level, there was
enhanced protection and enforcement of IPRs to the level of solemn international commitment
because of successful conclusion of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) in World Trade Organization. It is felt strongly that under the
competitive environment globally, stronger IPR protection rises the incentives for innovations
and raises returns to international transfer of technology.

How Long is a Utility Patent Enforceable?

A utility patent is valid from the issuance by the patent office and ends 20 years after the date
of filing of the earliest non-provisional application upon which the patent is based.
There is a patent term extension that will extend that window if the process at the patent office
was backlogged through no fault of your own. Plant and design patents have different terms.

Are there any restrictions in filing outside India for Indian residents?
Yes, the following provisions have to be complied with, in case of foreign filings by Indian
Residents:
– If an application is filed in India, then there is a mandatory waiting period for at least 6 weeks
before filing outside India, else a request for a foreign filing permit at the patent office must be
submitted, and only after getting the permit, one can do the filing outside India.
– If the applicant wants to file directly outside India, without filing in India first, then again, a
request for a foreign filing permit at the patent office must be submitted, and only after getting
the permit, one can do the filing outside India.
Failure to take permission from IPO before the filing of foreign application can lead to the
abandonment of the Indian Patent application and if granted, then revocation of the patent. One
might even face imprisonment up to 2 years or a fine or both.

What is the application process for a patent?

The true and first inventor(s), his assignee, or their legal representative – can apply for a patent
with a provisional or a complete specification either themselves or through an agent by duly
submitting the application form – at the appropriate office. In India, there are 4 offices, namely
Delhi, Mumbai, Chennai & Kolkata, and depending on the address of the applicant where he
resides, his domicile, or has a place of business or the place from where invention originated,
the appropriate office will be applicable. In the case of foreign applicants, who don’t have a
domicile, place of business in India, in that case, the place of business, or address for service
in India of the patent agent appointed by them is the determining factor for the appropriate
office. Specific state-wise details can be accessed here:
The date of the first filing of a patent application is called the priority date. In the patent system
of first to file, this date becomes important, since if there are two patents/ patent applications
with the same/substantially similar subject matter, the earlier priority date patent
application/patent survives the other.
If a filing has to be done in other countries, the priority of the initially filed application (parent
application) -can be taken and filed in respective countries/regions. The subsequent
applications shall have the same priority date as the parent application and are referred to as
family members of the initial application and each other. The application process is generally
similar but the format of application may differ from country to country and the applicant
ordinarily cannot file without the professional assistance of a patent agent or attorney in that
country/region.
 PATENTS
The TRIPS Agreement, which started in 1995, is the most complete global deal on
intellectual property (IP). It covers different areas like copyright, trademarks, patents, and
trade secrets.

The agreement has three main parts:

1. Standards: It sets minimum protection rules for different types of IP, based on
existing conventions (Paris and Berne). Countries can go beyond these standards but
must at least meet the minimum.
2. Enforcement: It outlines procedures to help people enforce their IP rights, like court
actions and remedies.
3. Dispute Settlement: Disagreements between countries about IP are handled by the
World Trade Organization (WTO).

The agreement also ensures equal treatment between members and allows developing
countries more time to adapt. Countries can create stricter protections if they wish and can
choose how to apply the rules within their legal systems.

It also emphasizes fair access to IP and technology for all, while allowing some exceptions
for public health and other important reasons. For example, developing nations have some
flexibility in providing patent protection for pharmaceuticals.

Related Rights (Article 14)

 Performers have the right to prevent the unauthorized recording (fixation) of their
performances on audio recordings (phonograms). They can also block the reproduction
and unauthorized broadcasting of their performances.
 Producers of phonograms have exclusive rights over reproduction and, in some cases,
rental rights, ensuring control over their works.
 Broadcasting organizations have the right to prevent unauthorized recordings and
rebroadcasting of their broadcasts.
 The minimum term of protection is 50 years for performers and phonogram producers
and 20 years for broadcasters.
 Exceptions can be made by Member countries, in line with the Rome Convention, for
the protection of performers, producers of phonograms, and broadcasting organizations.
2. Trademarks (Articles 15-20)
 Trademarks are any sign (e.g., words, logos, colors) capable of distinguishing the goods
or services of one enterprise from another.
 Visual perceptibility is generally required for registration, though some countries may
allow non-visual marks (e.g., sounds).
 Well-known marks are granted additional protection, even if they are used on dissimilar
goods, provided there is a risk of confusion.
 Trademark rights allow owners to prevent others from using identical or similar marks
if it may cause confusion.
 Non-use cancellations: Trademarks can be canceled after three years of non-use unless
valid reasons are provided (e.g., government restrictions).
 Trademarks must be renewed every seven years and can be renewed indefinitely.
3. Geographical Indications (Articles 22-24)
 These protect names that indicate the origin of goods with specific qualities linked to
that origin (e.g., Champagne).
  Misleading use of geographical indications must be prevented, especially when it
misleads the public or constitutes unfair competition.
 For wines and spirits, more stringent protection applies, even if consumers aren’t
misled.
 Exceptions allow certain uses of geographical indications, particularly when the term
has become generic (e.g., "cheddar").
4. Industrial Designs (Articles 25-26)
 New or original designs must be protected, as long as they are not dictated solely by
technical or functional needs.
 Special provisions apply to textile designs, ensuring that protection procedures do not
unreasonably restrict their registration.
 Design owners can prevent unauthorized copying or sale of articles with substantially
similar designs for commercial purposes.
 The term of protection must be at least 10 years, which can be divided into multiple
periods.
These provisions outline the framework for protecting different aspects of intellectual property
rights, ensuring that creators, performers, and businesses retain control over their works and
trademarks while balancing public access and fair competition.

Patents
The TRIPS Agreement requires Member countries to make patents available for any
inventions, whether products or processes, in all fields of technology without discrimination,
subject to the normal tests of novelty, inventiveness and industrial applicability. It is also
required that patents be available and patent rights enjoyable without discrimination as to the
place of invention and whether products are imported or locally produced (Article 27.1).
There are three permissible exceptions to the basic rule on patentability. One is for inventions
contrary to ordre public or morality; this explicitly includes inventions dangerous to human,
animal or plant life or health or seriously prejudicial to the environment. The use of this
exception is subject to the condition that the commercial exploitation of the invention must
also be prevented and this prevention must be necessary for the protection of ordre public or
morality (Article 27.2).
The second exception is that Members may exclude from patentability diagnostic, therapeutic
and surgical methods for the treatment of humans or animals (Article 27.3(a)).
The third is that Members may exclude plants and animals other than micro-organisms and
essentially biological processes for the production of plants or animals other than non-
biological and microbiological processes. However, any country excluding plant varieties from
patent protection must provide an effective sui generis system of protection. Moreover, the
whole provision is subject to review four years after entry into force of the Agreement
(Article 27.3(b)).
The exclusive rights that must be conferred by a product patent are the ones of making, using,
offering for sale, selling, and importing for these purposes. Process patent protection must give
rights not only over use of the process but also over products obtained directly by the process.
Patent owners shall also have the right to assign, or transfer by succession, the patent and to
conclude licensing contracts (Article 28).
Members may provide limited exceptions to the exclusive rights conferred by a patent,
provided that such exceptions do not unreasonably conflict with a normal exploitation of the
patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking
account of the legitimate interests of third parties (Article 30).
The term of protection available shall not end before the expiration of a period of 20 years
counted from the filing date (Article 33).
Members shall require that an applicant for a patent shall disclose the invention in a manner
sufficiently clear and complete for the invention to be carried out by a person skilled in the art
and may require the applicant to indicate the best mode for carrying out the invention known
to the inventor at the filing date or, where priority is claimed, at the priority date of the
application (Article 29.1).
If the subject-matter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process, where certain conditions indicating a likelihood
that the protected process was used are met (Article 34).
Compulsory licensing and government use without the authorization of the right holder are
allowed, but are made subject to conditions aimed at protecting the legitimate interests of the
right holder. The conditions are mainly contained in Article 31. These include the obligation,
as a general rule, to grant such licences only if an unsuccessful attempt has been made to
acquire a voluntary licence on reasonable terms and conditions within a reasonable period of
time; the requirement to pay adequate remuneration in the circumstances of each case, taking
into account the economic value of the licence; and a requirement that decisions be subject to
judicial or other independent review by a distinct higher authority. Certain of these conditions
are relaxed where compulsory licences are employed to remedy practices that have been
established as anticompetitive by a legal process. These conditions should be read together
with the related provisions of Article 27.1, which require that patent rights shall be enjoyable
without discrimination as to the field of technology, and whether products are imported or
locally produced.
Layout-designs of integrated circuits
Article 35 of the TRIPS Agreement requires Member countries to protect the layout-designs of
integrated circuits in accordance with the provisions of the IPIC Treaty (the Treaty on
Intellectual Property in Respect of Integrated Circuits), negotiated under the auspices of WIPO
in 1989. These provisions deal with, inter alia, the definitions of “integrated circuit” and
“layout-design (topography)”, requirements for protection, exclusive rights, and limitations, as
well as exploitation, registration and disclosure. An “integrated circuit” means a product, in its
final form or an intermediate form, in which the elements, at least one of which is an active
element, and some or all of the interconnections are integrally formed in and/or on a piece of
material and which is intended to perform an electronic function. A “layout-design
(topography)” is defined as the three-dimensional disposition, however expressed, of the
elements, at least one of which is an active element, and of some or all of the interconnections
of an integrated circuit, or such a three-dimensional disposition prepared for an integrated
circuit intended for manufacture. The obligation to protect layout-designs applies to such
layout-designs that are original in the sense that they are the result of their creators' own
intellectual effort and are not commonplace among creators of layout-designs and
manufacturers of integrated circuits at the time of their creation. The exclusive rights include
the right of reproduction and the right of importation, sale and other distribution for commercial
purposes. Certain limitations to these rights are provided for.
In addition to requiring Member countries to protect the layout-designs of integrated circuits
in accordance with the provisions of the IPIC Treaty, the TRIPS Agreement clarifies and/or
builds on four points. These points relate to the term of protection (ten years instead of eight,
Article 38), the applicability of the protection to articles containing infringing integrated
circuits (last sub clause of Article 36) and the treatment of innocent infringers (Article 37.1).
The conditions in Article 31 of the TRIPS Agreement apply mutatis mutandis to compulsory
or non-voluntary licensing of a layout-design or to its use by or for the government without the
authorization of the right holder, instead of the provisions of the IPIC Treaty on compulsory
licensing (Article 37.2).
Protection of undisclosed information
The TRIPS Agreement requires undisclosed information -- trade secrets or know-how -- to
benefit from protection. According to Article 39.2, the protection must apply to information
that is secret, that has commercial value because it is secret and that has been subject to
reasonable steps to keep it secret. The Agreement does not require undisclosed information to
be treated as a form of property, but it does require that a person lawfully in control of such
information must have the possibility of preventing it from being disclosed to, acquired by, or
used by others without his or her consent in a manner contrary to honest commercial practices.
“Manner contrary to honest commercial practices” includes breach of contract, breach of
confidence and inducement to breach, as well as the acquisition of undisclosed information by
third parties who knew, or were grossly negligent in failing to know, that such practices were
involved in the acquisition.
The Agreement also contains provisions on undisclosed test data and other data whose
submission is required by governments as a condition of approving the marketing of
pharmaceutical or agricultural chemical products which use new chemical entities. In such a
situation the Member government concerned must protect the data against unfair commercial
use. In addition, Members must protect such data against disclosure, except where necessary
to protect the public, or unless steps are taken to ensure that the data are protected against unfair
commercial use.
Control of anti-competitive practices in contractual licence
Article 40 of the TRIPS Agreement recognizes that some licensing practices or conditions
pertaining to intellectual property rights which restrain competition may have adverse effects
on trade and may impede the transfer and dissemination of technology (paragraph 1). Member
countries may adopt, consistently with the other provisions of the Agreement, appropriate
measures to prevent or control practices in the licensing of intellectual property rights which
are abusive and anti-competitive (paragraph 2). The Agreement provides for a mechanism
whereby a country seeking to take action against such practices involving the companies of
another Member country can enter into consultations with that other Member and exchange
publicly available non-confidential information of relevance to the matter in question and of
other information available to that Member, subject to domestic law and to the conclusion of
mutually satisfactory agreements concerning the safeguarding of its confidentiality by the
requesting Member (paragraph 3). Similarly, a country whose companies are subject to such
action in another Member can enter into consultations with that Member (paragraph 4).

PATENT- TYPES & LAWS RELATED TO THEM IN INDIA

The intellectual property right is a legal right that is granted to the inventor to protect his or her
invention. It is a legal right of the owner that protects the creation, invention, symbol or design,
etc. of the one who created them so that they can enjoy their property without the disturbance
of others by preventing anyone from using or copying them for a specified time. Intellectual
Property is an intangible property that is a result of human creativity. There are several types
of Intellectual Property for eg. Patent, Trademark, Copyright, Geographical Indication, etc.
Intellectual Property Right gives a person an exclusive right to use his or her creation which
means that no one can copy or use that creation without the prior permission of the creator or
inventor. In this article, we will only discuss types of patents and laws related to them in India.A
patent is a branch of intellectual property rights like Trademark, Copyright, etc are. The word
"patent" is derived from the Latin term "patere" which implies "to lay open," i.e. to make
available for public inspection. A patent is a license that confers an exclusive right or title to
the owner for a limited or specific period of time to exclude others from making, using, or
selling an invention and the violation of these exclusive rights or title of the patent holder is
known as patent infringement. In India, the act that govern the patent is Patents Act, 1970. The
main motive behind the enactment of the Patent Act is to encourage people to come up with
new ideas in their field by awarding them exclusive rights over their inventions.
HISTORY OF PATENT
The Act VI of 1856 was the first legislation in India regarding the patent which was afterward
repealed by Act IX of 1857 since it‘s been enacted without the approval of the British Crown.
In 1859, another legislation was introduced for granting ‘exclusive privilege‘. This legislation
is known as Act XV of 1859. This legislation undergoes some changes of the previous
legislation, namely, granting of exclusive privileges to useful inventions only, an extension of
priority period from 6 months to 12 months, excluding importers from the definition of
investors. In 1872, the Act of 1859 was combined to provide protection relating to designs. The
act was renamed "The Patterns and Designs Protection Act" under Act XIII of 1872 which was
further amended in 1883. This act was remained in force for 30 years and was again amended
in 1888.
The Indian Patent and Design Act, 1911 repealed all the previous acts that have been enacted.
The present Patent Act, 1970 came into force in the year 1972, further amending and combining
the prevailing law relating to Patents in India. This act was again amended by the Patents
(Amendment) Act, 2005, wherein product patent was extended to all or any fields of
technology including food, drugs, chemicals, and micro-organisms. This amendment repealed
provisions relating to Exclusive Marketing Rights (EMRs) whereas a provision for enabling
grant of compulsory license and pre-grant and post-grant opposition has been introduced.
CONDITIONS FOR PATENTABILITY IN INDIA
Not each and every invention get patented. A patent is granted to the owners once their
invention satisfies the conditions of patentability. Section 3 and Section 4 of the Patent Act,
1970 provides the list of exceptions that are not considered as inventions and hence are non-
patentable. There are three conditions that need to be satisfied by the inventor to get his
invention patent. These are as follows-
1. The invention should be novel, which implies that it should not be in existence.
2. The invention should be capable of commercial application.
3. The invention should be non-obvious, which means that there should be a significant
improvement to the previous invention.
PERSONS ENTITLED TO APPLY FOR PATENT
Section 6 of the Act specifies the persons who are entitled to make an application for a patent
for an invention. With subject to the provisions contained in section 134, the following persons
are entitled to make an application for a patent -
1. The application can be made by any person claiming to be the true and first inventor of
the invention;
2. It can be made by any person being the assignee of the person claiming to be the true
and first create in respect of the right to make such an application;
3. It can also be made by the legal representative of any deceased person who immediately
before his death was entitled to make such an application.
TYPES OF PATENT
A patent protects the inventor‘s invention and new discoveries that are new and non-obvious.
There are three types of patents and each type of patent protects a specific invention. However,
it is possible for one invention to have more than one type of patent available for it. These three
types of patents are explained below-
1) Utility Patents
This type of patent covers processes, compositions of matter, machines, and manufacturers that
are new and useful. This is the most common sort of patent that people seek. It can also be
obtained for new improvements to existing processes, compositions of matter, machines, and
manufacturers. As an Indian innovator looking to file a utility patent, one can apply for utility
patents in countries such as Australia, UAE, China, Germany, France, and a number of other
countries within the European Union.
2) Design Patents
Design Patent is defined as the "surface ornamentation" of an object, and it can also include
the shape or configuration of an object. This type of patent can only be obtained where the
design is inseparable from the object. This type of patent only protects the object‘s appearance.
If an individual wants to protect the functional or structural features of an object, he or she
must also file for a utility patent.
3) Plant Patents
Plant patents are often obtained to protect new and distinctive plants. In order to obtain this
type of patent are the plant is should not a tuber propagated plant (i.e. an Irish potato), the plant
is should not found in an uncultivated state, and the plant can be asexually reproduced. Asexual
reproduction means that instead of being reproduced with seed, the plant is reproduced by
grafting or cutting the plant. Like Utility patents, currently, there is no provision for plant
patents in India and you can apply for the same in Australia, the USA, and several European
countries.
TYPES OF PATENT APPLICATION UNDER THE PATENT ACT, 1970
1. Provisional Application
It is a preliminary application that‘s filed before the patent office so as to claim the priority.
Basically this type of application is filed when an inventor requires additional time to improve
his or her invention. This application is beneficial because the Indian Patent Office follows the
‘First to File system. By early filing, the inventor prevents any other related inventions from
becoming prior art to the inventor‘s application.
In this type of application, a complete specification should be filed within 12 months from the
date of filing of provisional application and failure to do so will result in the cancellation of the
application.
2. Ordinary Or Non-Provisional Application
A non-Provisional Application is filed before the patent office by the applicant if he or she
doesn‘t have any priority to claim. This application must be accompanied by a complete
specification depicting the invention in detail.
3. Conventional Application
An application for patent filed in the Patent Office, claiming a priority date based on the same
or substantially similar application filed in one or more of the convention countries, is called a
convention application. In order to get the status of convention, an applicant should file the
application in the Indian Patent Office within 12 months from the date of initial filing of a
similar application in the convention country.
4. PCT International Application
It is a streamlined patent application process in many countries at one go. It is governed by the
Patent Corporation Treaty and is valid in up to 142 countries. The advantage of filing this type
of application is that only a single international patent application is required and can be filed
in order to seek protection for an invention in up to 142 countries throughout the globe.
5. PCT National Phase Application
This type of application is filed by the inventor in each country in which he or she wants to
seek protection. This application 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
This type of application is made, when an applicant comes up with an improvement or
modification in his invention described or disclosed in the main application for which he or she
has already applied for or has obtained a patent.
A patent of addition can only be granted after the grant of the parent patent, hence there is no
need to pay a separate renewal fee for the Patent of Addition during the term of the main patent.
7. Divisional Application
When an application made by the applicant claims more than one invention, the applicant on
his own or to meet the official objection may divide the application and file two or more
applications, that will be applicable for each of the inventions. This type of application, divided
out of the parent one, is known as Divisional Application. The priority date for each and every
divisional applications will be the same as that claimed by the Parent Application (Ante-dating)
The term of a patent for a divisional application shall be twenty years from the date of filing of
the main application.
PROCEDURE FOR GRANT OF PATENT
Once the application for grant of the patent is made, a request for examination of the application
is to be made before the Indian patent office within 48 months from the date of priority of the
application or from the initial date of filing of the application. Once the examination of the
application is done, the first examination report is issued, and the applicant is given an
opportunity to meet the objections raised in the report. The applicant has to comply with all the
requirements within 6 months from the issuance of the first examination report which may be
extended for further 3 months only on the request of the applicant and if all the requirements
of the first examination report are not complied with, within the prescribed period of nine
months, then the application is treated to have been abandoned by the applicant. Once the
objections are removed and all the requirements are complied, the patent is granted and notified
in the Patent Office Journal.
OPPOSITION TO GRANT OF PATENT
Section 25 of the act deals with the opposition to the grant of patent. There are two types of
oppositions-
1. Pre-grant Opposition
Section 25(1) of the act deals with Pre-grant Opposition. It states that after the publication of
the application and before the grant of a patent, any person in writing can raise his or her
objection against the grant of patent.
2. Post-grant Opposition
Section 25(2) deals with Post-grant Opposition. These are the objections that are raised after
the grant of the patent to the applicant. These objections are supposed to be raised within one
year of the publication of the notice of grant of a patent by way of giving notice of opposition
to the Controller. The notice of opposition must disclose the following items:
The nature of the opponent‘s interest;
The facts under which opposition is done; and
The relief which the opponent seeks
GROUNDS OF OPPOSITION
Pre-grant opposition can be made on the grounds that are listed under section 25(1)(a) to (k) of
the Patent Amendment Act, 2005:
 Wrongfully obtaining the invention
 Anticipation by prior publication
 anticipation by prior date, Prior claiming in India
 Previous public knowledge or public use in India
 Obviousness and lack of inventive step
 Non-patentable subject matter insufficiency ofa description of the invention non-
disclosure of the information as per the requirement or providing materially false
information by an applicant
 A Patent application that is not filed within 12 months of filing the first application in
a convention country
 Nondisclosure or incorrect source of biological material
 Invention anticipated with regard to traditional knowledge of any community,
anywhere in the world.
Similar to the pre-grant opposition as mentioned above, a post-grant opposition could also be
filed on a number of grounds as specified under section 25(2) of the Act. It is to be noted that
several of the grounds are similar to the grounds required for filing pre-grant opposition.
PATENT INFRINGEMENT
Patent infringement is the violation of the exclusive rights of the patent holder. As discussed
earlier, a Patent is a license conferring an exclusive right or title to the inventor for a set period
of time to exclude others from making, using, or selling an invention and the violation of these
exclusive rights or title of the patent holder is known as patent infringement. It involves the
activities like unauthorized use, production, sale, or offer of sale of the subject matter or
Invention of another person‘s patent. There are two kinds of patent infringement that are
mentioned below-
1. Direct Infringement
Infringement is said to be direct when a product that is substantially close to a patented product
or invention is marketed, sold, or used commercially without permission from the owner of the
patented product or invention.
2. Indirect Infringement
Indirect infringement occurs when some amount of deceit or accidental infringement happens
without any intention of infringement.
REMEDIES FOR PATENT INFRINGEMENT
Section 108 of the act deals with the reliefs that a court may grant in any suit for infringement
include an injunction subject to such terms, if any, as the court thinks fit and, at the choice or
option of the plaintiff, either damages or an account of profits. The court may also order that
the goods which are found to be infringing and materials and implements, the predominant use
of which is in the creation of infringing goods shall be seized, forfeited, or destroyed, as the
court deems fit under the circumstances of the case without payment of any compensation.
EXCEPTIONS OR LIMITATIONS TO PATENT RIGHTS IN INDIA
1. Compulsory Licensing- It is the authorization given to the third party by the government to
make, use or sell a particular product or use a particular process that has been patented, without
the prior permission of the patent owner. There are certain prior conditions, mentioned under
sections 84-92, which are needed to be fulfilled if a compulsory license is to be granted in favor
of someone.
2. Exception on Experimental / Scientific Research- Section 47(3) deals with the exception
of the experimental and scientific use of Patented invention. The use of a patented invention
for experiments/ scientific research‘s and teaching purposes does not come under infringement.
3. Exception Regulatory use or Private use- The section which deals with the exception of
regulatory use or private use is section 107A of the Indian Patent (Amendment) Act, 2005. It
is also referred to as bolar provision. Under this exemption, there are certain act that does not
amount to infringement of patent if they are performed solely for uses reasonably related to the
development and submission of information required for obtaining regulatory approval for the
manufacture, use, construction, sale or import of any product. This provision helps the prompt
availability of the products, particularly generic drugs immediately after the expiry of a patent.
4. Foreign Vessels, Aircraft, or Land Vehicles- This exception is covered under Section 49
of the Indian Patents Act. When the foreign vessels, aircraft, or land vehicles accidentally or
temporarily comes or enter in India, the patent rights granted to the inventor are not infringed
when the patented invention is used exclusively for the needs of foreign vessels, aircraft, or
land vehicles and other accessories of alike nature.
LANDMARK JUDGMENTS
1. Hoffmann-La Roche Ltd vs Cipla Ltd., Mumbai Central1
After independence, this was the first case of patent infringement. In this case, the plaintiff
pleaded that an interim injunction order should be passed against the defendant‘s selling of a
generic form of the drug. The court rejected the plaintiff‘s plea by saying that the sale of the
plaintiff‘s patented product was for public interest and also a case of a counterclaim for the
revocation of the patent was ongoing in another court proceedings.
2. Dr Snehlata C. Gupte v. Union of India & Ors2
In this case, the court cleared the the most important point that is related to the date as to when
the patent could be considered to be granted. According to some person‘s the patent is granted
as soon as the decision for its non-rejection from the patent granting authority comes. However
the court in this case held that the issue of a certificate in case of granting patents is a mere
formality which means patent could not be considered to be granted.The application for the
grant of a patent would be considered to be accepted once the controller passes the order.
Enactment of patent act helped in protecting new inventions resulting in the growth of
commerce and technology in India. Patent Act, 1970 also provided patent holder with
numerous rights in order to protect and promote their invention. This act helps in encouraging
people to come up with new ideas in their field by awarding them exclusive rights over their
inventions. If a person wants to patent his or her invention he or she has to go through a detailed
procedure which is mentioned in the act.

Step by Step Procedure For Patent Registration in India

A patent is one of the crucial Intellectual property that provides its owner the legal right to
protect their innovative idea, product or service by preventing others from making, using,
selling, exporting the invention for a certain period of time which is 20 years from the date of
filing patent application. According to the Patent Act in India, an individual can apply for a
patent only if the invention must be a new product, or process that involves innovation and can
be made/used in an industry. In order to get your invention patented, one needs to follow a
specified procedure for obtaining patent in India. The below blog explains patent application
procedure and its eligibility, types, required documents, benefits and also costs involved, etc.

Patent Registration grants intellectual property rights to the inventor of a new product,
technology, or process. These rights give the inventor an exclusive opportunity to sell,
manufacture, and import the invented product for 20 years from the application date if it gets
approved. Let’s understand how you can get registration of a patent and what are the crucial
steps involved in the procedure for obtaining a patent that you need to take.
Patent Registration process or procedure for obtaining patent begins with the crucial step of
patent search where you analyse the novelty aspect of your invention. Only if your invention
is novel, innovative, and state-of-the-art, you can proceed with the patent filing procedure for
obtaining patent further. The Patent Act 1970 gives you the flexibility of filing a provisional
patent application if your invention is in the development stage and replacing it with the
complete application as soon as the product is developed or within 1 year from the filing date.
For completely developed products, you can directly file the complete application with a
detailed specification.
What is Patent Registration?
Patent Registration is a legal process of securing exclusive rights over a newly invented
product. These include the rights to manufacture, sell, and import the product for the next 20
years since the patent application filing date. It helps an inventor capitalize on his intellectual
property and reward his innovative ideas, research, and development efforts appropriately.
Wondering about its legal framework? Patent Registration is governed under the Indian Patent
Act of 1970 and administered by the office of the Controller General of Patents.
Eligibility for Registration Process of Patent in India
Inventors can secure patents only if they are completely novel. This means that a similar or
identical invention has never been introduced in the public domain before. Simply put, the new
invention should be absolutely state-of-the-art. The novelty criteria need to be met before the
patent application is actually filed. Also, the invention should have an innovative function or
feature that’s not obviously known to the public. Besides novelty, another important
requirement is Industrial Application. The invented product must have a practical utility and
be capable of being manufactured in the industry. This directly excludes any new object that’s
solely made for aesthetic purposes. Even if these criteria are met, an invented product cannot
be patented if it is prohibited under Sections 3 and 4 of the Patents Act.
Patent Registration Criteria
1. Novelty: New & Innovative; Publicly Disclosed for the first time.
2. Inventive Step: Far from public knowledge; state-of-the-art technical advancements
3. Industrial Applicability: A practical utility and capability of being manufactured in
an industrial setup.
4. Not Prohibited under Sections 3 & 4 of the Patent Act: Must be legally eligible to
be patented.
Types of Patent Application
Based on the terms of patent protection, there are two types of patent applications. Firstly, we
have the Provisional Application to be filed for a temporary protection of 1 year while the
product is in the development stage. This allows time to develop the product without the fear
of losing exclusive rights over it. Secondly, we have the complete application which is filed
for full-term patent protection. It can be filed directly or in the replacement of the provisional
patent, once it lapses.
Besides, based on purpose, we can classify patent applications into 6 types. Let’s see what they
are:
 Ordinary Patent Application: For patent protection within India.
 PCT National Phase Patent Application: Allows the applicant to enter the PCT
process and get patent protection internationally.
  PCT International Patent Application: Final stage of PCT process, international
application for patent registration.
 Convention Patent Application: Used to claim priority based on an earlier application
filed in a convention country.
 Divisional Patent Application: Used to divide an existing patent application into
multiple separate applications to secure multiple inventions.
 Patent of Addition Application: Used to apply for an improvement or modification
of an already existing and patented invention.
How to Apply for Patent in India?: Patent Filing Process in India
The procedure for obtaining patent involves a series of simple steps. You will first have to
select the appropriate application to file. Then, visit the IP India portal and begin the application
process. Remember, documents are the most crucial aspect of your application and will decide
its success.

Select Patent Application

After being confident that your product meets all the requirements for Patent Registration, you
can begin the patent filing procedure in India. The first step is to decide which type of
application you want to file to initiate a procedure for obtaining a patent. You have two options
to choose from:
 Provisional Application, which provides 1 year of Patent Protection and lapses after
that.
  Complete Application, which provides 20 years of full-term Patent Protection
Step 1: Patent Search
Once you’ve decided which application to file, you can move to the next stage of the patent
filing procedure in India, which is, conducting the Patent Search. Patent Search is conducted
to check whether there are any similar inventions already patented or available in the public
domain. This is done to ensure that the product seeking patent registration is absolutely novel
and undisclosed to the public. If the search results are clear, you can move to the next step.
Step 2: Patent Application Filing
The procedure for filing patent application involves filing Form-1 and submitting it with Patent
Specification in Form-2. You may require additional documents at this stage, which we will
discuss later. Remember, if you’ve filed the provisional application, it must be replaced with
the complete application within a year.
Step 3: Patent Specification Drafting
The next step in the procedure for filing patent application is drafting a patent specification, a
detailed document that contains information of the invented product. It is filed with the
application to ensure full disclosure of information to the Registrar of patent. At Setindiabiz,
our legal experts help you draft Patent specifications accurately and comprehensively. Seek
our assistance anytime you need it!
Step 4: Patent Publication
The following stage is the publication of application in the Patent Journal. It is done 18 months
after the date of application and brings the invention into the public domain for the first time.
Step 5: Requesting Patent Examination
Within 48 months of applying, a patent examination is requested. An examiner is assigned to
go through the details of the application and raise objections against any discrepancies found.
If objections are raised, the applicant must reply within 12 months. If the replies aren’t
satisfactory, show cause hearings may be called to settle objections.
Step 6: Grant of Patent
Only after all the objections are settled, the Registrar will consider granting the patent rights to
the inventor for 20 years from the application date.
List of Documents Submitted During Procedure for filing Patent Application
1. Application Form (Form-1): Application for Patent Registration
2. Provisional/Complete Specification: Detailed description of the product, its features,
and functional aspects.
3. Abstract of the Invention: Brief description of the invention
4. Power of Attorney: Authorisation to the person or entity filing the application
5. Statement and Undertaking (Form 3): Declaration regarding accuracy of information
and the inventor’s rights
6. Priority Document (if applicable): Evidence of priority claims
7. Proof of Right to File: Required applicant is not the inventor
8. Acknowledgment of Fee Payment: Proof that the Requisite Fees for Patent
Registration is paid.
9. Form 28: Required if the applicant claims a rebate in fees as a recognised MSME or
startup
How Does Patent Registration Protect Your Intellectual Property?
Before answering this question, let’s first understand who is the rightful owner of a patented
product. Well, the right to own a registered patent is reserved with its true inventor or his
assignee. Whosoever files the Patent application among them, will be declared its rightful
owner. This person will receive exclusive rights of manufacturing, selling, and importing the
product after successful completion of the Procedure for Filing Patent Application. Now, let’s
discuss what the procedure for registration of a patent really offers!
Patent Registration, gives legal recognition to the newly invented product, establishing its
rightful owner and exclusive scope of use. The patent rights granted by registration deter
potential infringers from developing similar products and risking legal actions against them.
Also, using the exclusive rights of selling the patented product, the inventor can gain
monopolized monetary benefits from it. Further, patents can be sold or licensed to generate
additional revenue.
What are the Benefits of Patent Filing Procedure in India?
The procedure of Patent registration provides multiple benefits to the rightful owner of the
invented product. These include the legal protection they receive against unauthorized use, the
exclusive monopoly in trade, and other financial benefits through licensing or selling of the
patent. Let’s have a closer look at how they impact the intellectual property rights of the owner
in the long run.
1. Legal Protection: Patent process in India grants exclusive rights to the inventor
coupled with the right to sue an infringement action in any court of law. This not only
deters third parties from misusing the product, but also helps enforce the intellectual
property rights of the owner.
2. Market Advantage: A patent-registered product has a market advantage over non-
patented products. Here’s how! Patented products are deemed more credible for
 customers as the registration establishes their originality and innovation. Also, the
patent owner has exclusive rights to trade and manufacture it. This allows the owner to
single-handedly capitalize over it for a long period.
3. Financial Opportunities: Once you’ve got the patent of a product, it can be sold or
licensed to a third party to generate additional revenue. Selling the patent will relinquish
the ownership rights of the inventor. On the contrary, licensing it will retain the same.
You can analyze the profitability of both these options and avail the one that best suits
you.
4. Research and Development Incentives: Procedure for filing patent application or
patent registration encourages and rewards innovation by providing inventors with a
time-limited monopoly over their products. This incentivizes inventors and businesses
to invest in research and development (R&D) activities, knowing that they will have
exclusive patent rights and potential financial benefits from their inventions in the long
run.
How Much Does Patent Procedure in India Cost?
Let’s compute the overall expense of the patent filing procedure in India into Government fees
and Professional fees. Government fees are paid while submitting the patent application and
other forms like the request for examination report and so on. This fee depends on how lengthy
your application is, what is the mode of filing, and what are the charges of the examiner. Here’s
a glance at the updated fees:
1. For Natural person(s) and/or Startup: 1,600 (within 30 pages, 10 claims) for e-filing
and 1,750 (within 30 pages, 10 claims) for physical filing
2. For Small entities, alone or with a natural person(s) and/or Startup: 4,000 (within
30 pages, 10 claims) for e-filing and 4,400 (within 30 pages, 10 claims) for physical
filing
3. Others, alone or with a natural person(s) and/or Startup and/or small entity: 8,000
(within 30 pages, 10 claims) for e-filing and 8,800 (within 30 pages, 10 claims)
4. Additional Fees: 160 per extra page and 320 per extra claim for e-filing; 180 per extra
page and 350 per extra claim for physical filing.
Management of IP Assets and IP Portfolio
Managing an IP portfolio involves strategically overseeing a company's intellectual property
assets across different levels of protection, including national, regional, and international
patents, by filing applications in relevant jurisdictions, monitoring patent statuses, and making
informed decisions about licensing, enforcement, and defense strategies to maximize the value
of the IP assets.
Key aspects of IP asset and portfolio management:
 Identifying IP potential:
Recognizing new inventions, designs, and creative works within a company that could be
protected as intellectual property.
 IP due diligence:
Conducting thorough analysis of existing IP rights to understand potential conflicts and
opportunities before acquiring or licensing.
 Patent filing and prosecution:
Preparing and filing patent applications in relevant jurisdictions, including national patent
offices, regional patent offices like the European Patent Office (EPO), and through the Patent
Cooperation Treaty (PCT) for international protection.
 IP portfolio analysis:
Regularly reviewing the IP portfolio to assess the strength and value of existing patents,
identify potential gaps, and plan future protection strategies.
 Licensing and commercialization:
Negotiating licensing agreements to allow others to use patented technology in exchange for
royalties, maximizing the commercial potential of IP assets.
Layers of the International Patent System:
 National Level:
Filing patent applications directly with each country's national patent office, providing
protection solely within that jurisdiction.
 Regional Level:
Applying for a patent through a regional patent office, like the EPO, which grants protection
across multiple countries within that region.
 International Level (PCT):
Utilizing the Patent Cooperation Treaty (PCT) to file a single international patent application,
which then enters a "national phase" where individual countries can be selected for further
prosecution.
Benefits of a layered approach:
 Cost-efficiency:
Utilizing the PCT system can streamline the initial filing process and potentially reduce costs
compared to filing in multiple countries individually.
 Market reach:
Gaining protection in key markets by strategically choosing national and regional patent filings
based on business goals.
 Strategic flexibility:
The ability to assess market potential and decide which countries to pursue patent protection
in during the national phase of a PCT application.
Challenges in IP management:
 Complex legal landscape: Different patent laws and procedures across various
jurisdictions can create complexity in managing an international IP portfolio.
 Enforcement challenges: Difficulty in enforcing IP rights in certain countries,
particularly when facing infringement issues.
 Cost considerations: Filing and maintaining patents in multiple jurisdictions can be
expensive.
Key considerations for effective IP management:
 Collaboration with legal experts:
Consulting with experienced patent attorneys to navigate the intricacies of IP law and ensure
proper protection.
 Regular monitoring and updates:
Keeping track of patent application statuses, deadlines, and potential infringement risks.
 Strategic IP portfolio development:
Align IP strategy with business objectives to maximize the value of intellectual property assets.