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Patent as an Intellectual Property Right

Patent

A patent is an exclusive right granted for an invention, which is a product or a technique that, in general, introduces a new way of doing something or solves a technological problem in a novel way. The current Indian position on patent law is governed by the Patents Act, 1970. To obtain a patent, technical details concerning the innovation must be made public through a patent application.

Patents are available for inventions such as designs, accessories, computer software, and cosmetic products, as well as commercial methods such as chemical formulas, compounds, processes, decorative objects, nanochip technology, containers, and computer hardware.

The Indian Patent Registration Office is based in Kolkata and operates branch offices in New Delhi, Mumbai, and Chennai.

Clearance

Patent clearance or searches are conducted primarily to ascertain the presence of potential patent barriers to the commercialization of any new product or technology. It is necessary to conduct a preliminary patent search in order to avoid infringing on any active patents.

Considerable funds are committed to the research and development of new products and technology. Individuals make snap decisions to seek patent protection for their innovations without conducting adequate study or filing for Patent Application or Registration in Delhi.

At a later stage, this shift causes barriers and adds time and expense to the company endeavor. There is a potential that an already-existing patent will render the patent on such product null and void. As a result, conducting a thorough search with the assistance of competent patent professionals is crucial.

To streamline the process, professional personnel conduct extensive patent searches and make recommendations for the filing of a patent application.

Patent Searches

  • Freedom to Operate search:
    This extensive search and examination of the patent literature are conducted to determine the existence of active patents or patents whose terms are about to expire. This is to avoid infringing or violating the intellectual property rights of other patent holders.
     
  • Novelty and Patentability Search:
    Conducting a novelty search enables you to determine whether an invention is patentable. These searches are conducted with the assistance of invention-related keywords.
     
  • Patent Prior Art/State of the Art Search:
    A discovery of innovation in preceding art cannot be considered novel, and hence cannot be protected by copyright. It identifies holes or grey areas in current technology and suggests solutions, creating a clear boundary between previous art and claimed invention.
     
  • Search for Validity/Invalidity:
    Occasionally, examiners will waive the prior art search required to declare a patent invalid. This search is undertaken to determine whether any prior arts have been neglected, hence invalidating the patent.

India Patent Registration

In India, a patent application may be filed in the following manner
  • Ordinary Patent Application;
  • Provisional or Complete Patent Application;
  • Convention Patent Application;
  • PCT National Phase Patent Application;

Procedure
A patent application must be filed with the appropriate Patent Office along with a provisional or complete specification, drawings, and abstract of the invention, as well as information and an undertaking detailing the number, filing date, and current status of each foreign patent application, priority document, and related documents (if any).

The registration procedure entails the following steps:
  • filing a patent application
  • electronic data processing
  • application categorization and publication
  • examination of the application by a patent examiner
  • pre or post-grant opposition that is either accepted or denied by the Controller of Patents.

Additionally, candidates can use a web-based filing tool to ensure their application is submitted on time. Following the submission of the needed data and payment of the applicable fees, an acknowledgment slip is issued for future reference. When a provisional specification is filed with an application, the complete specification must be filed within twelve months after the provisional specification's filing date.

Following that, the applicant may request publication before to or after the expiration of the 18-month period beginning with the priority date. The application is published in the Official Journal. Anyone may file an objection to the issuance of a patent with the appropriate agency at any time after the patent application is published but before the patent is issued. After a comprehensive evaluation of the application, a request for examination or expedited examination is filed, and the applicant receives a first examination report stating any objections or additional requirements.

The applicant must respond within about six months from the date of the initial examination report, with a three-month extension. If all objections are overcome, the patent shall be granted by the Controller. When a patent is granted, the computerized system assigns it a serial number. Concurrently with the creation of a record in the e-register, a Certificate of Patent in the prescribed format is generated.

Under the current computerized system, the date of registration of a Patent in the Register of Patents is the same as the date of grant of the Patent by the Controller. The Patent Office's official periodical publishes notices of patent awards. Within twelve months of the grant's publication date, any interested party may file a post-grant opposition.

The Opposition Board adjudicates such cases, and the Controller renders the final decision. The decisions of the Controller of Patents may be appealed to the Intellectual Property Appellate Board.

Duration
Patents in India are valid for twenty years from the filing date of the patent application, regardless of whether the specification is provisional or complete, at which point the patent becomes public domain. A patent registered in a particular nation confers exclusive protection on the holder in that country.

India did, however, join the Patent Cooperation Treaty (PCT) in 1998, which allows for patent protection in all signatory governments, saving applicants time and effort when pursuing protection in multiple countries. Additionally, it has ratified the 1883 Paris Convention for the Protection of Industrial Property of the World Intellectual Property Organization.

Infringement
According to the rules of the Indian Patents Act, 1970, the following constitute acts of patent infringement:
  • The colorable replication of the innovation
  • Including fundamental elements of the invention
  • Including minor modifications to the innovation
Falsification of register entries, asserting patent rights in an unlawful manner, and similar offences are also punished under the Indian Patents Act, 1970.


Limitations:
The statute of limitations for bringing a patent infringement lawsuit is three years from the date of infringement, and jurisdiction is defined as the geographic area in which the infringement occurred. Additionally, the patentee bears the burden of establishing that an infringement occurred.

Remedies Available In Civil Actions

An action for patent infringement can be launched in India's District Court or High Court, which provide for the following remedies:
  • Interlocutory Injunctions/Temporary Injunctions
  • Permanent Injunctions
  • Seizure, confiscation, or destruction of infringing items or materials

How Can You Benefit From A Corporate Lawyer?

Expert Intellectual Property Lawyers handle complex cases involving patient infringement, as well as claims for damages in the event of repeated breaches and wrongful gains. They can assist and advise you in pursuing the appropriate legal recourse in intellectual property-related matters.

References:
  • https://www.thelawcodes.com/what-is-patent/
  • https://www.thelawcodes.com/corporate-lawyers-in-chandigarh/
  • https://www.thelawcodes.com/intellectual-property-lawyers/
  • https://www.thelawcodes.com/patent-lawyers-chandigarh/
  • https://www.thelawcodes.com/corporate-lawyers-in-gurgaon/

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