The word “Patent” denotes a monopoly right in respect of a new and useful invention. A patent gives a patentee an exclusive right over an invention for a fixed period of time. These rights are territorial in nature and are given by the government in exchange of disclosure of your invention.
The three criteria for patentability viz., novelty, non-obviousness and industrial applicability are recognized in India. Further the invention should not fall in the non-patentable invention category. India recognizes absolute novelty.
As defined in section 2 (1)(j) of the Indian Patent Act, ‘invention’ means a new product or process involving an inventive step and capable of industrial application.
‘Inventive step’ in section 2 (1) (ja) means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
‘Capable of industrial application’, in relation to an invention, in section 2 (1) (ac) means that the invention is capable of being made or used in an industry.
Background Of Indian Patents Law
Though the first legislation in India relating to patents was enacted in 1856, a proper legislation under the Controller of patents was enacted in 1911, as the Indian Patents & Designs Act, 1911. Since then there have been a series of changes in the Act and Rules to bring the Act in consonance with the changing scenario, the last amendment being in 2005. This amendment was the third amendment to the Patents Act, 1970 and was introduced through the Patents (Amendment) Ordinance, 2004 w.e.f. 1st January, 2005. This Ordinance was later replaced by the Patents (Amendment) Act, 2005 (Act 15 Of 2005) on 4th April, 2005 which was brought into force from 1st January, 2005.
India is a member of Paris Convention and joined the same on December 7, 1998.
Patent Co-operation Treaty is a treaty administered by the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations Organization (UNO). India became a member of the Patent Co-operation Treaty on 7th December, 1998.
It takes about 3-5 years to obtain a patent in India and the time frame may vary depending on the technology involved and complexity of the proceedings.
Term Of Patent
The term of patent is 20 years from the date of filing of Indian application in respect of Ordinary and Convention Applications and 20 years from the International filing date for PCT applications.