Procedure for Granting a Patent

A patent is a grant of license for the exclusive use of one’s own invention. It can be an idea or a product or a process of production. This idea floated around the 19th century when during the industrial revolution, there were a host of inventions and the inventors felt a dire need to protect their products for the fear of infringement of the same. The industrialist feels threatened by the fact that the product they have invented, might have a chance of being copied by someone and produced as their own. Therefore, keeping in mind this apprehension of the people, the British government then enacted the Indian Patents and Designs Act, 1911. Although much has changed since then, the Parliament of India, drafted a law after independence which largely premised on United Kingdom Patents Act, 1949, and after incorporating many changes by successive governments, it finally took the shape and became operational in 1970. The Act aims to consolidate all laws with regards to patents. Let us discuss the process for granting a patent.

The object of the patent law was to grant a monopolistic right of exploiting the new invention or the process of improving the existing article or the method of processing a product etc. to the person who invented it. J. Sarkaria in the case of Bishwanath Prasad Radhey Shyam case[1] laid down the following objectives of the patent laws in India:

  1. Encouraging Scientific Research
  2. Prominent use of New Technology
  3. Promoting Industrial Progress
  4. Granting exclusive privilege to use or to sell the method or the product patented for a specific period of time.
  5. Stimulating new inventions of Commercial Utility.

The product thus patented must be an inventor’s own discovery and must have novelty and utility.

Procedure for granting a patent

The Patents Act, 1970 in Section 6 – 11 lays down the process to file for granting a patent which is granted for a limited timeframe. Each section elaborates on how to file for a patent.

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Section 6: Persons entitled to apply for patents:

  1. Any person who claims to be the true and first inventor of the said invention.
  2. Any person who is assigned on behalf of the person claiming to be the first inventor.
  3. The legal representative of the deceased person, who immediately before the death was eligible to file for such an application.
  4. An application can be made by a person either alone or with another person, jointly.

In case of an assignee, even a firm can apply as assignee for the person who is entitled to such patent[2]

Section 7: Form of Application:

  1. Every application that is made as per the provisions of the Patent Corporation Treaty is deemed as an application under this act.
  2. The application shall be for one invention only and will have to be submitted in the manner as prescribed by and to the Patent Office.
  3. When an assignee fills a form, it must be mentioned who the first owner or inventor is and must recognize it by later filing an attachment of right to make such application for patent.
  4. The application filed must mention and declare that the person is in possession of that invention and in case of an application by assignment; that the person so named is the true owner of the said invention.

Section 8: Special Provision for Foreign Nationals:

The foreign nationals will have to furnish the details regarding the name of the country where an application is made, the serial number and date of filing such application and such other particulars which may be asked to be attached. It is also required of a foreign national to give an undertaking to such effect that he shall keep the Controller informed of every such development or change that is made in the application filed outside the country.

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Section 9: Provisional and Complete Specification:

If the application is attached with a provisional specification, it is mandatory to submit a complete specification within 12 months from the date on which such application was made. The complete specification must include the nature of the invention and the way in which the person so skilled can use the invention after reading the same. If a complete specification is not provided on during the timeframe of 12 months, the application shall be deemed abandoned.

Section 10: Contents of Specification:

This gives details on what the complete specification must include. It must contain a title that gives an overview of the subject matter of the said invention. A full description of the invention along with the use and the method through which it is operated must be added. The Controller might require drawings to be supplied of the said product. The best operational method of the invention must be disclosed in detail.

Examination of the Application

The examiner of patents shall examine the application to check if it is in accordance with all the provisions of the Act for granting a patent and if there are any grounds of objections. It will also be checked if the invention has already been claimed by any other person or it has been published already. If objections arise, the same will be communicated to the applicant. Generally, the objections are made with regard to the drafting of the applications and the applicant is required to comply with the amendments sought. In case of failure to make the said amendments within a period of 15 months, the application will be deemed abandoned. When all objections of the Examiner are rectified, the Controller then will accept the application and publish it in Official Gazette. Once, an advertisement is made, the opposition to the claim is invited. If there is an opposition, it has to be submitted within four months. These oppositions are forwarded to the applicant and a reply to the opposition has to be filed within one month. After receiving the same, the Controller shall give a fair hearing to both sides and arrive at his conclusion.

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Grant of Patent

Once an application is accepted either without opposition or after the hearing of the opposition and the decision going in favor of the applicant, the patent shall be granted with the seal of the Patent Office and the date, on which such patent is granted, it shall go in the Register of Patents. If the decision of the Controller goes against the applicant, it can be challenged in the High Court.

Conclusion

Although it is necessary for the procedure to be duly examined, it paves way for an excess of control over the scientific temperament. The too elongated process for granting a patent takes away any opportunity to immediately operationalize the said product. It gives too much power to the patent Office thus delaying the process and gives rise to Control Raj and red tape. The Patent Act, 1970 needs to be amended and be in tandem with the expectations of the 21st century.

Also read Ad-interim injunction for infringing patent: B. Braun Melsungen Ag & Ors. Vs. Rishi Baid & Ors.

[1] Bishwanath Prasad Radhey Shyam v Hindustan Metal Industries, AIR 1982, SC 1444

[2] Shining Industries v Shri Krishna Industries, AIR 1975 All, 231

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