UNIT-2

Patents

The word “Patent” has come to mean a form of exclusivity provided by the government to
inventors allowing them to make, use, offer for sale, or sell their inventions and scientific
creations, for disclosing them to the general public.
Towards the end of the eighteenth century, when the British rulers started expanding and
establishing their stronghold on various provinces across the world including India, they
wanted to ensure that the rights of the inventors of technological inventions and scientific
creations were not usurped and copied by the locals. To achieve this in India, they passed a
legislation, the Indian Patents and Designs Act in 1911, which was predominantly based on
the British Inventions and Designs Act of 1907. After independence, it was observed that
there is a need to do some amendments to the Patent act. The Bill was reintroduced as the
Patents Bill 1970, and it was successfully passed and received the assent of the President on
19 September 1970 and became the Patents Act 1970 (39 of 1970), the first independent
legislation governing inventions and their patenting in India. This Act has been amended in
1974, 1985, 1999, 2002, and 2005, and is available to us in its current form.

Patents are statutory privileges (in the form of exclusive privileges) granted by a monarch or
a sovereign government to individuals or a group of individuals, which grants or protects
their right to manufacture, exploit, explore, collect, sell, deal, etc. in certain goods and
services.
Typically, such privilege would be granted for a limited time (though there are various
instances where the privileges have been granted for eternity). During such time, the grantee
would have the right to enjoy the privileges granted to him under the patents, while also
being able to prevent others from doing the same. In exchange for this exclusive right, the
grantee is required to carry on business and trade in the region, train apprentices, and share
his knowledge
with others in the same industry, in effect disperse and diffuse the knowledge to the society at
large.

Proprietary Right :- The exclusive privilege of monopoly rights granted to the

inventor/patentee over his invention is known as the proprietary right. It is legally treated as a
property right and classified under intellectual property rights.

Property rights on intellectual creations have originated from 4 philosophical theories:

1. The Natural Right Theory- Based on John Locke’s Labour theory, it states that
every person has a property right in his own body and all the creations made using the
 body and the mind. They also have the natural right to enjoy the sole exploitation of
such a property excluding others.
2. The Reward by Monopoly Theory- This theory states that the inventor should be
rewarded for his ingenuity and inventiveness in advancing the knowledge of the
society in the form of a monopoly right for a limited time period. This theory accepts
that if left to the market forces alone, the inventor would not be able to protect his
invention from being copied.

3. The incentive to invent theory- This theory is an economic theory and is part of
industrial economics. This theory suggests that instead of rewarding the inventor after
inventing, the society can advance in a particular field of technology id the society
creates incentives in such technological areas then the inventors could dedicate their
time, effort and resources to solve technological problems.

4. The Exchange for Secrets Theory- It states that without an incentive to safely
disclose the invention to the society under the protection of the government, the
inventor would like to keep his invention secret, which results in the society not
getting benefitted from the technology.

Objectives of The Patent Law

1. To provide a statutory exclusive right to the inventor for a certain period of time
(during which he is entitled to stop others from using, selling, or working out his
invention) enabling him to commercially exploit it to recover his investment towards
the inventions;
2. To enable the disclosure of the invention to the society at large, so that other
researchers in that field experiment with the invention and practise it, thus enabling
the expansion of scientific research and new technology in the society;
3. To stimulate investments in new technological innovations and inventions of
commercial utility; and
4. To pass the invention and associated knowledge into the public domain after the
expiry of the exclusive period of the privilege granted to the inventor, thereby leading
to the expansion of scientific knowledge in the society.

Requirements of a grant of a patent

There are four requirements that need to be fulfilled for an invention to become a patentable
invention under the Patent Act of 1970 and they are as follows:
1. The invention can be a product or a process;
2. Such product or process has to be new (Novelty);
3. The invention should involve an inventive step (Non obviousness); and
4. The invention should be capable of industrial application (utility).
Product patent and process patent
The product and process patents are the types of claims which an inventor makes on his
invention as part of his application to the patent office.

Types of Patent

UTILITY PATENT
1. If you have a new, useful invention that is not obvious to others in the field of
invention, you may qualify for a utility patent. Utility patents are grouped in five
categories: a process, a machine, a manufacture, a composition of matter, or an
improvement of an existing idea.
2. Often, an invention will fall into more than one of the categories. For instance,
computer software can usually be described both as a process (the steps that it takes to
make the computer do something) and as a machine (a device that takes information
from an input device and moves it to an output device).
3. Regardless of the number of categories in which an invention falls, only one utility
patent may be issued on it.
4. Among the many types of creative works that might qualify for a utility patent are
biological inventions; new chemical formulas, processes, or procedures; computer
hardware and peripherals; computer software; cosmetics; electrical inventions;
electronic circuits; food inventions; housewares; machines; and magic tricks. If you
acquire a utility patent, you can stop others from making, using, selling and importing
the invention.

DESIGN PATENT
 If you create a new and original design that ornaments a manufactured device, you may
qualify for a design patent.
 Design patents are granted for any new or original Ornamental design for an article of
manufacture. A design patent protects only the appearance of the article and not the
article itself. An inventor can easily register both a utility patent and a design patent.
 A design patent is granted for product designs—for example, an IKEA chair, Keith
Haring wallpaper, or a Manolo Blahnik shoe. You can even get a design patent for a
computer screen icon. There are strings attached to a design patent, too.
 As noted, the design must be ornamental or aesthetic; it can’t be functional. Once you
acquire a design patent, you can stop others from making, using, selling and importing the
design. You can enforce your design patent for only 14 years after it‘s issued.

PLANT PATENT
 The least-frequently issued type of patent are plant patents—granted for any asexually or
sexually reproducible plants (such as flowers) that are both novel and nonobvious.

 This may include cultivating different types of plants to create mutants or hybrids and
also newly found seedlings. This patent protects the owner by keeping other individuals
or businesses from creating the type of plant or profiting from the plant for at least 20
years from the date of the application.
Requirements of Patentability
1. What is novelty?
Novelty is a patentability requirement. An invention is not new and therefore not
patentable if it was known to the public before the date of filing of the patent
application, or before its date of priority if the priority of an earlier patent application
is claimed. The purpose of the novelty requirement is to prevent the prior art from
being patented again. Thomas Edison, for example, did not get a patent on the basic
concept of the light bulb. It was already patented and therefore in the prior art.
Instead, Edison got a patent for his improvements to the light bulb. These
improvements included a very thin filament and a reliable technique for joining the
white-hot filament to the room temperature lead wires.

2. Inventive Step and Non-obviousness

The inventive step and non-obviousness reflect a general patentability requirement
present in most patent laws, according to which an invention should be sufficiently
inventive i.e., non-obvious in order to be patented. In other words, the non-
obviousness principle asks whether the invention is an adequate distance beyond or
above the state of the art. The expression inventive step is predominantly used in
Europe, while the expression non-obviousness is predominantly used in United States
patent law. The expression inventiveness is sometimes used as well. Although the
basic principle is roughly the same, the assessment of the inventive step and non-
obviousness varies from one country to another. For instance, the practice of the
European Patent Office (EPO) differs from the practice in the United Kingdom.

3. Utility (Usefulness of Patent Application)

A Patent on New Invention both are useful and existed from other different product is
known has Utility of Patent. In a world where obtaining value for money has become
even more important than in the past, it may be useful to look for alternatives to the
traditional way of doing things. For some types of invention, use of a petty patent or
utility model as a means of protection may be a useful alternative to patent protection
in many countries. Obtaining protection this way is often much less expensive than
proceeding through the traditional patent route and, as noted below, in several
countries has an advantage in its own right. In considering the requirement of utility
for patents, there are three main factors to review: operability of the invention, a
beneficial use of the invention, and practical use of the invention.

4. Anticipation (Disclosure of the claimed invention by another)

In patent law, anticipation refers to the prior invention or disclosure of the claimed
invention by another, or the inventor's own disclosure of the claimed invention by
publication, sale, or offer to sell prior to the inventor's application for a patent. In
other words, if someone else has known about or used the invention before the patent
applicant applies for a patent, that patent applicant will not be entitled to a patent.
 Anticipation is a ground for invalidating or rejecting a patent because it means that the
claimed invention lacks novelty. Patent invalidity based on lack of novelty, or
anticipation, requires that the invention was known or used by others before it was
invented by the patentee. lacks novelty. Patent invalidity based on lack of novelty, or
anticipation, requires that the invention was known or used by others before it was
invented by the patentee.

5. Prior Art
Prior art (state of the art or background art), in most systems of patent law, constitutes
all information that has been made available to the public in any form before a given
date that might be relevant to a patent's claims of originality. If an invention has been
described in the prior art, a patent on that invention is not valid. Information kept
secret, for instance, as a trade secret, is not usually prior art, provided that employees
and others with access to the information are under a non-disclosure obligation. With
such an obligation, the information is typically not regarded as prior art. Therefore, a
patent may be granted on an invention, although someone else already knew of the
invention. A person who used an invention in secret may in some jurisdictions be able
to claim "prior user rights" and thereby gain the right to continue using the invention.
As a special exception, earlier-filed and unpublished patent applications do qualify as
prior art as of their filing date in certain circumstances. To anticipate the subject-
matter of a patent claim, prior art is generally expected to provide a description
sufficient to inform an average worker in the field (or the person skilled in the art) of
some subject matter falling within the scope of the claim. Prior art must be available
in some way to the public, and in many countries, the information needs to be
recorded in a fixed form somehow.

Types of Prior art

1. Novelty: A "novelty search" is a prior art search that is often conducted by patent
attorneys, patent agents or professional patent searchers before an inventor file a
patent application. A novelty search helps an inventor to determine if the invention is
novel before the inventor commits the resources necessary to obtain a patent. The
search may include searching in databases of patents, patent applications and other
documents such as utility models and in the scientific literature. Novelty searches can
also be used to help an inventor determine what is unique about his/her invention.
Anything not found in the prior art can be potentially patentable. Thomas Edison, for
example, did not get a patent on the basic concept of the light bulb. It was already
patented and therefore in the prior art. Instead, Edison got a patent on his
improvements to the light bulb. These improvements included a very thin filament
and a reliable technique for joining the white hot filament to the room temperature
lead wires. A novelty is also conducted by patent examiners during prosecution of the
patent application.
 2. Validity: A "validity search" is a prior art search done after a patent issues. The
purpose of a validity (or invalidity) search is to find prior art that the patent examiner
overlooked so that a patent can be declared invalid. This might be done by an entity
infringing, or potentially infringing, the patent, or it might be done by a patent owner
or other entity that has a financial stake in a patent to confirm the validity of a patent.

3. Clearance: A clearance search is a search of issued patents to see if a given product

or process violates someone else's existing patent. If so, then a validity search may be
done gt to try to find prior art that would invalidate the patent. A clearance search is
a search targeting patents being in force and may be limited to a particular country
and group of countries, or a specific market.

Procedure for obtaining a patent in India

Who can apply for a patent?
An inventor can work on the invention all by himself, using his own resources. Alternatively,
he could be
working for an organisation as an employee, where the employment contract specifies that
any IP generated by the employee belongs to the organisation. Also, there could be a
circumstance where the inventor was working on an invention before his death. Section 6 of
the Patent Act deals with these three circumstances by specifying the persons who could file
for a patent. It states that the following three categories of persons can file a patent
application:
1. Any person claiming to be the true and first inventor of the invention;
2. Any person being the assignee of the true and first inventor; and
3. The legal representative of any deceased person who immediately before his death
was entitled to make such an application.

When to file the patent application?

Typically, an inventor will have a flash of genius and get an idea for an invention. But after
that initial flash, he has to sweat it out in the laboratory conducting R&D on the invention for
it to become ready for filing a patent application. But safeguarding the invention till such
time would be an extremely difficult task. It could be stolen or it could be misplaced or
misappropriated, leading to the inventor losing the right over his invention. Also, it is to be
remembered that patenting is a race, and only the first person to file the patent application
would be granted the patent right. For safeguarding the interests of the inventors who have
only conceptualized the invention, but are yet to arrive at a concrete result, the patent system
in India has, under the provisions of Section 9 of the Act, allowed the filing of a document
called ‘Provisional Specification’.

What information is to be provided in the application?

Along with the patent application (which contains the information about the invention as well
as the inventor), a document called ‘Specification’ has to be filed with the patent office.
Section 10 of the Act provides the contents of the specification document. The specification
document, either provisional or complete, should describe the invention. It would begin with
a title indicating the subject matter of the invention and elaborate on the invention in greater
detail. Only a quick introduction to the invention is what is mandated under the provisional
specification, while a more detailed description of the invention is required under the
complete specification.

Infringement of a patent
Patent infringement is the commission of a prohibited act with respect to a patented invention
without permission from the patent holder. Permission may typically be granted in the form
of a license. The definition of patent infringement may vary by jurisdiction, but it typically
includes using or selling the patented invention.Patents are territorial, and infringement is
only possible in a country where a patent is in force. For example, if a patent is granted in the
United States, then anyone in the United States is prohibited from making, using, selling or
importing the patented item, while people in other countries may be free to exploit the
patented invention in their country. The scope of protection may vary from country to
country, because the patent is examined – or in some countries not substantively examined –
by the patent office in each country or region and may be subject to different patentability
requirements.

The various types of patent infringement occur when a person or business uses parts of a
patented idea, method, or device without permission. Patent infringement could involve either
using or selling the patented invention or idea. Before you can sue someone for patent
infringement, you must figure out who is at fault, which is not always as obvious as you
might think. Following are the types of patent infringement.

1. Direct Infringement- Making, using, selling, trying to sell, or importing something

without obtaining a license from the patent holder is considered direct patent
infringement. The offender must complete this act willfully and within the United
States.
2. Indirect Infringement-Indirect infringement includes contributory infringement and
inducement to infringe a patent. Under these terms, even if a company isn’t the one
that originally infringed on the patent, that company can still be held accountable for
patent infringement.
3. Contributory Infringement-This type of infringement involved the purchase or
importation of a part that aids in creating a patented item. To prove contributory
infringement, one must show that the component’s main use would be to create a
patented item. A generic item that has other uses usually doesn’t qualify in proving
contributory infringement.
4. Induced Infringement-This occurs when a person or company aids in patent
infringement by providing components or helping to make a patented product. It
occurs through offering instructions, preparing instructions, or licensing plans or
processes.
5. Willful Infringement-Willful infringement exists when a person demonstrates
complete disregard for someone else’s patent. Willful infringement is especially
damaging to defendants in a civil suit. The penalties are much higher, and typically
defendants must pay all attorney and court costs if they are found guilty.
6. Literal Infringement-To prove literal infringement, there must be a direct
correspondence between the infringing device or process and the patented device or
process.

Hall mark And ECO mark

Eco mark is a certification mark issued by the Bureau of Indian Standards (BIS) for
products that are ecologically safe and adheres to the standards prescribed by the BIS. It
was first issued in 1991 by a resolution. It is issued by the Ministry of Environment and
Forests. Products that meet the prescribed environmental criteria, as well as quality
standards set by BIS, will be issued the ECO MARK label.
 A hallmark is an official mark or series of marks struck on items made of metal, mostly
to certify the content of noble metals such as platinum, gold, silver, and in some
nations, palladium. In a more general sense, the term hallmark can also be used to refer to
any distinguishing mark.

Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in
1970. It provides a unified procedure for filing patent applications to protect inventions in
each of its contracting states. A patent application filed under the PCT is called
an international application, or PCT application.
A single filing of a PCT application is made with a Receiving Office (RO) in one language. It
then results in a search performed by an International Searching Authority (ISA),
accompanied by a written opinion regarding the patentability of the invention, which is the
subject of the application. It is optionally followed by a preliminary examination,
performed by an International Preliminary Examining Authority (IPEA). [4] Finally, the
relevant national or regional authorities administer matters related to the examination of
application (if provided by national law) and issuance of patent.
A PCT application does not itself result in the grant of a patent, since there is no such thing as
an "international patent", and the grant of patent is a prerogative of each national or regional
authority.[5] In other words, a PCT application, which establishes a filing date in all
contracting states, must be followed up with the step of entering into national or regional
phases to proceed towards grant of one or more patents. The PCT procedure essentially leads
to a standard national or regional patent application, which may be granted or rejected
according to applicable law, in each jurisdiction in which a patent is desired.