THE PATENT ACT 1970
Updated: Jun 16, 2020
Written By: Tanushree Jaiswal, University of Allahabad
PATENTS ACT, 1970
A Patent is a statutory right for an invention granted for a limited period of time to the patentees by the Government, in exchange of full disclosure of his invention for excluding others, from making, using selling, importing the patented product or process for producing that product for those purposes without his consent.
1. To encourage inventions by providing protection to inventors from infringement of their inventions.
2. It contribute to the promotion of technological innovation, and
3. To provide maximum benefit to the society by securing their work, i.e it is conducive to social.
PATENT : Patent is an exclusive license from the Government which confers on the licensee, or on persons authorized by licensee, to the exclusion of all other persons, any right in respect of the patented invention.
It is granted for:
1. The inventions made in India.
2. Their new and useful improvements (Patent of addition).
FOLLOWING ARE THE REQUIREMENTS OF PATENT
i. The subject matter should be new. This is test of "Novelty".
ii. It should be useful. This is test of "Utility".
iii. It should be an 'invention'. It must involve an inventive step.
iv. It should be non-obvious. It should not be mere "Discovery".
v. It should be capable of Industrial application.
vi. The subject matter should have commercial purpose.
vii. Patent can be in respect of substance or in respect of a person.
INVENTION WHICH CAN NOT BE PATENTED (SECTION 3 & 4)
a. An invention which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.
b. The mere Discovery.
c. A substance obtained by a mere mixture or aggregation of the properties of the components.
d. A method of agriculture or horticulture.
e. Any process for the medicinal, surgical, curative, diagnostic, or other treatment of human beings or of animals.
f. Plants and animals other than micro-organisms but including seeds, varieties and species and essential biological processes.
g. A computer program.
h. A literary, dramatic, musical, or artistic work or cinematographic works and television productions;
i. A mere scheme or rule or method of performing mental act or method of playing game;
j. A presentation of information.
k. An invention which in effect, is effect, is traditional knowledge or which an aggregation or duplication is of know properties of traditionally known component or components.
· An invention relating to atomic energy.
PERSONS ENTITLED TO MAKE THE PATENT APPLICATION
Persons entitled to make application for Patent
a) By any person claiming to be the true and first inventor of the invention.
b) By any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application.
c) By the legal representative of any deceased person who immediately before his death was entitled to make such application.
Who Can Apply?
· True and First inventor,
· His assignee and
· His legal representatives or jointly.
Form of Application (u/s 7):
-Application shall be files in form I of Patent rules.
-Every application for a patent to be made for one invention only.
-Every application must state that the application is the true & first inventor and it must also state that application is in possession of the invention.
-Every international application under the Patent Cooperation Treaty (PCT) for a patent, as may be filed designating India shall be deemed to be an application under the Act, if a corresponding application has also been filed before Controller in India.
-Every application, not being a convection application, shall be accompanied by a provisional or a complete specification.
Assignment of Right to Apply for Patent:
Where the application is made by virtue of an assignment of the right to apply for a Patent for the invention, there shall be furnished with the application proof of the right to make the application.
Provisional Application (u/s 9):
If provisional specification is filed with application, a complete specification shall be filed within 12 months from the date of filing of the application, and if the complete specification is not so filed, the application shall be deemed to be abandoned.
However, the period of 12 months shall be reckoned from the date of filing of the earliest provisional specification.
Contents of Specification (u/s 10):
-It shall describe the invention, its use and begin with a title sufficiently indicating the subject matter to which the invention relates;
-Fully and particularly describe the invention and its operation or use and the method by which it is to be performed.
-Disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection.
-Defining the scope of the invention for which protection is claimed; and
-Be accompanied by an abstract to provide technical information on the invention.
-In case of an international application designating India the title, description, drawings, abstracts and claims filed with the application shall be taken as the complete specification for the purposes of the Act.
-A complete specification shall be drawn up in the prescribed Form 2.
Grant of Patent (u/s 43):
-Where application for a Patent has been found to be in order, the patent shall be granted as expeditiously as possible to the applicant with the seal of the Patent office and the date on which the Patent is granted shall be entered in the register.
-After hearing both the parties, "Controller of Patent" shall grant Patent and it is thereafter published in the Official Journal.
-The Controller has been put under obligation to publish the fact that the Patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.
The Patent Act 1970 had a limited scope of protection wherein the essential elements of invention were NEW, USEFUL and MANNER OF MANUFACTURE. The Act defines Capable of Industrial Application in relation to invention.
There are 3 types of Patents:-
1. UTILITY PATENTS,
2. DESIGN PATENTS
3. PLANT PATENTS
Patent is valid for 20 YEARS from the date of filing the application for Patent.