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What is Intellectual Property and is Intellectual Property Rights?

Swarit Advisors

| Updated: May 07, 2018 | Category: Patent

Creations of mind are considered to be as valuable as other forms of property and are termed as Intellectual Property. These include scientific inventions, literally and artistic works, symbols, and names used in commercial activities, industrial designs, geographical indicators etc. These intellectual properties can be protected from infringement. Like rights in the other properties, the owner or creator of the intellectual property is protected so as to ensure the benefits are reaped by those who created it.

What is Patent?

A patent is a form of intellectual property. It is an exclusive right granted for an invention of a product or a process that either delivers a new manner of doing something or that offers a new technique to solve a problem. A Patent grants protection to the patent owner for a limited period, generally 20 years, from the date of filing of the application. It excludes others from utilizing the invention without authorization from the owner. Patent rights are territorial and only protected in the country where the patent is registered.

Why Get A Patent Registered?

  • The patent is a form of asset and benefits may be reaped out of such intangible assets.
  • Patent registration provides an edge over the competitors to the owner in the market.

The Patent Act, 1970

In India, the present Patents Act, 1970 came into force in the year 1972, which amended and consolidated the existing law relating to patents. It was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including chemicals, microorganisms, food, and drugs. Upon the amendment, the provisions relating to Exclusive Marketing Rights (EMRs) have been repealed along with the introduction of a provision for enabling grant of compulsory license.

Chapter 2 of the Act mentions various provisions where no patent can be obtained. Example: Inventions relating to atomic energy, a mere discovery of a scientific principle, formulation of an abstract theory, arrangement, re-arrangement or duplication of known devices etc. Before approaching the authority for patent registration India, one must be thorough with the list so as the invention does not fall under the category of ‘INVENTIONS NOT PATENTABLE’

Who is Entitled to Apply for Patents?

According to Section 6 of The Patents Act, 1970, an application for a patent may be made by

  1. a person who claims to be the true and first inventor of the invention
  2. another person acting as assignee of the person as above
  3. a person who is a legal representative of a deceased person who could have filed the application immediately preceding his death

Such applications can be made either alone or jointly with any other person.

What is the Procedure of Patent Registration in India?

If the invention is still in its stages of development and tests are continuing, a provisional application may be filled which then blocks the filing dates and gives 12 months to complete the procedures and file the completed application. For both, provisional and complete application, due care must be taken so as to include all the details as minutely as possible. The drafts must be very thorough to safeguard the interests of the owner of the patent in the future.

The details to mentioned in the specifications include description of the invention along with its operation or use and the method by which it shall be performed, abstract to provide technical information to provide the information on invention, also shall include the best method of performing the invention as known to the applicant and for which he is entitled to claim protection. It should mention a claim or claims defining the scope of the invention for which the protection is claimed.

The prescribed format for Application is Form-1 and for specifications is Form-2.

After filing of the application, a request for examination is to be made for examination of the application by the Indian Patent Office. The First Examination Report is then issued and the applicant is given an opportunity to rectify all the objections raised such a report within 12 months of its issuance. If not complied with within the prescribed period of 12 months, then it is believed that the application has abandoned the application. If the objections are removed duly and all the required compliances are met with, the patent is granted and notified in the Patent Office Journal.

  • The payment may be renewed after 20 years by paying the prescribed fee. If not paid, the patent registration stands ceased.

The restoration of the patent may be done upon a request within 18 months of cessation along with the prescribed fee, which is then notified for further processing.

Swarit Advisors

Swaritadvisors.com is technology motivated platform establishing the specialized legal & Financial advisory services in India. We are dedicated to helping startups and MNC in solving legal, Taxation and compliance related to starting and running their business around the world.

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