DEFINE PATENT  Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the

Invention must not be solely used in any illegal work and is useful to the world in a
A patent is an exclusive right granted by the Government to the inventor to exclude others to use, bonafide manner.
make and sell an invention for a specific period of time. A patent is also available for
improvement in their previous Invention. The main motto to enact patent law is to encourage What cannot be patented
inventors to contribute more in their field by awarding them exclusive rights for their inventions.
In modern terms, the patent is usually referred to as the right granted to an inventor for his A novel product or technique must have an innovative step in order to be patentable in India. It
Invention of any new, useful, non-obvious process, machine, article of manufacture, or may also be manufactured or used in the industry. The invention must also satisfy certain criteria
composition of matter. The word “patent” is referred from a Latin term “patere” which means “to relating to novelty, innovative step, and industrial applicability in order to be patentable.
lay open,” i.e. to make available for public inspection.
Sections 3 and 4 of the Indian Patent Act, 1970 deal with those discoveries or methods that do
In the case of Aphali Pharmaceuticals Ltd. vs. State of Maharashtra (1989), the Apex Court not fall under the ambit of the Act and therefore are not patentable. The reasons why these are
defined a patent as a grant of some privilege, property or authority, made by the government or not patentable are that sometimes the inventions or discoveries are against the public policy, the
sovereign of a country to one or more individuals. particular invention or discovery has already existed in nature, meaning thereby, that any
discovery of living or non-living thing is already existing in nature and is known, and invention
Term of Patent or discoveries are against the natural laws. The following are some of the examples of inventions
that cannot be patented:
The term of every patent in India is 20 years from the date of filing the patent application,
irrespective of whether it is filed with provisional or complete specification.
A patent cannot be issued for a device that is used for gambling machines, bank lockers,
However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of 20 or housebreaking. A patent cannot also be granted to software that can help someone
years begins from the international filing date. get into someone’s email by hacking it. These inventions are frivolous in nature and go
against natural laws.
Examples of patented creations of India
Any invention of medical treatment or a method related to medical treatment cannot be
In India, some of the most famous patented creations are as follows: patented. The reason is that the doctors or surgeons will not be able to perform
surgeries because they will be worried about patent infringement at that point in time.
1. Patanjali Ayurvedic Products (has its main focus on Ayurveda and traditional medical
systems). Any discovery or invention cannot be patented if it is against the established natural laws
or principles. For example, if someone makes a clock that has 10 hours, which is
2. Bharat Biotech’s Covexin (a national COVID-19 vaccine that helped curb this deadly divided into 100 minutes and 100 seconds each. It shall go against natural laws or
disease). universal law.
3. Frugal Engineering Philosophy (a company developed by Tata Motors with the This does not apply to all innovations or discoveries, such as Isaac Newton’s law of
primary goal of building outstanding quality automobiles at prices that are gravity or Albert Einstein’s relativity formula. Simply put, a scientific theory or a rule
considerably reasonable.) of nature cannot be patented.

Discovery under The Patents Act

What are Patentable and non Patentable Inventions
The Act clearly states that discovery is not patentable and is excluded from patent protection.
There are three basic tests for any invention to be patentable: Section 3 (c) and (d) clearly states that mere discovery of something that already exists in nature
is not patentable under the Act because such discovery is not new and hence would not be
 Firstly, the invention must be novel, meaning thereby that the Invention must not be in considered as an invention. Under the Patents Act, only inventions are patentable and discoveries
existence. are not.
 Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant
improvement to the previous one; mere change in technology will not give the right of The reason for a discovery being non-patentable under the Act is that discovery of a new form,
the patent to the inventor. substance, etc is not a new thing. It already existed in nature and hence it cannot be treated as a
new invention since it did not involve any inventive steps, skills, etc. Therefore, such a discovery
would not be treated as an invention and shall be non-patentable under the Act.

Ownership of patent Rights and obligations of the patentee

Under Section 6 of the Patent Act, 1970, the following individuals can apply for a patent and The person who receives a patent is called a patentee. The patentee has legal ownership of the
eventually get their invention patented, thus granting them ownership rights: patent, treating it like any other property. This ownership grants exclusive rights, preventing
others from making, using or selling the patented product or using the patented process.
1. Any individual who is claiming to be the true and first inventor. Section 48 of the Indian Patents Act, 1970, outlines the rights of the patentee. These exclusive
2. Any individual who is the assignee of the aforementioned individual and one who has rights are given by the government to encourage inventors to create new and useful things with
the right to make such an application. certain conditions. Here are the key rights of a patentee:
3. Any individual who is the legal representative of any deceased person who just Exclusive Right
before his/her death, was entitled to make such an application. A patentee has the exclusive right to make, use, exercise, sell or distribute the patented product
or use the patented method. This right can be exercised by the patentee, their agents or licensees.
What is discovery? However, these rights are only valid during the patent’s term, which is 20 years from the date of
The act of searching and exploring something that already exists in nature or the environment but
filing the patent application.
was never really recognized before is called ‘discovery.’ The recognition of something new
which already exists is discovery. Something which has been there in nature or environment but Right to Grant License
never came in front of the human eyes and has been recognized now, therefore it will be treated Section 70 of the Indian Patents Act, 1970, provides the right of patentee to grant licenses to
as ‘new.’ others for using the patented invention in exchange for consideration. If there are multiple
owners of the patent, all owners must collectively grant the license to a third party.
For example, fossils. Scientists discover fossils that have existed for thousands of years but have
never really been recognized by humans before. Another example would be the new species of Right to Assign
plants or animals. Therefore, the things, which were there in nature for quite a long time but were Section 69(5) of the Patent Act of 1970 provides the right of patentee to assign or give licenses to
not recognized by humans would come under the ambit of a discovery. third parties for producing and distributing the patented goods.

What is an invention? Right to Surrender the Patent

The creation or designing of something or the process of creating or designing something that Under Section 63 of the Indian Patents Act, 1970, there is a right of patentee has the option to
never existed before, by using someone’s intellect or knowledge, skills, etc is called an surrender their patent. There’s no obligation to maintain the monopoly right for the entire 20-
‘invention.’ The creation or designing of something new with the help of one’s own knowledge, year term. The patentee can submit a surrender application to the Controller, who then publishes
ideas, or experiments comes under the meaning of an invention. it in the official gazette

Right to Sue for Infringement

For example, the creation of television or cell phones never existed before. These were created
Infringement occurs when the patentee’s rights are violated, involving the unauthorised making,
by scientists by using their own ideas and experiments. However, it is to be noted that the parts
which were used in creating such an invention already existed before but the scientists used such using, selling or distributing of the invention. The patentee, their assignee, licensee or agent has
parts in creating something new and that is called an invention. the right to file a civil suit for infringement in a court not lower than the District Court. If the
court establishes a violation, it may grant an injunction or award damages.
INNOVATION: innovation may be defined as a change that adds value to products or services
while also meeting consumer demands. It occurs when a new and effective product or service is Right to be Issued a Duplicate Patent
brought to the market that meets the demands of customers by providing better products and Section 154 of the Indian Patents Act, 1970, addresses the loss or destruction of patents. It is the
services. right of patentee apply for a duplicate patent if the original is lost, destroyed
Inventive Step here means that the invention involves some kind of technological advancement
which was not there before Right to Make a Patent of Addition
Sections 54 to 56 of the Indian Patents Act, 1970, provide right of patentee for a Patent of
Addition, allowing modifications to an existing invention.
 Patent Infringement
Obligations of patentee
The following acts will amount to infringement of a patent:
As the proprietor of a patent, a patentee carries specific obligations to uphold and enforce their
rights in the patent. These obligations of a patentee include: 1. If an individual or company has actually produced the patented article without
obtaining prior permission from the patentee.
Duty to Pay Statutory and Maintenance Fees 2. If the individual or organisation uses a patent process without seeking consent of the
The patentee is obligated to pay all statutory costs associated with the registration procedure to patentee.
obtain the patent. Non-payment of these charges, as outlined in Section 142 of the Patent Act, 3. If any individual uses, exercises, sells or distributes any patented article or process
renders the patent ineligible for consideration. without having any lawful authority to do so.

Duty to Disclose the Patent Acts not amounting to infringement of a patent

According to Section 8 of the Patent Act of 1970, the patentee must disclose the innovation to
society. The following acts do not amount to infringement:

Duty to Work the Invention 1. There was an innocent use of the patented material or process.
The patentee is obligated to actively work on the invention in India, either by manufacturing the 2. The use was for experimentation and instruction purposes.
product or licensing it to others. This obligation of patentee aims to prevent the patentee from 3. The use was for invention in foreign vessels.
merely holding the invention without contributing to its development. The patented products
should be made available to the public at reasonable prices, meeting the reasonable requirements
of the public.
Remedies for infringement of a patent
A patentee, licensee, assignee, or the co-owner has the authority to file a suit within 3
Duty to not Misuse the Patent years from the date of infringement. The individual(s) can seek the following remedies:
The patentee is prohibited from using the patent to violate laws or regulations, harm public
interest or unfairly dominate a market. Additionally, false or misleading statements about the Declaration
invention in advertising, marketing or promotional materials are not permitted.
A patentee may claim a declaration stating that the act of the infringer must be said to be
unlawful and that there be a declaration that the patentee receives compensation for the act of
Use of Patent by Government infringement.
As per Section 100 of the Indian Patents Act, 1970, the central government has the authority to
use a patented invention for government purposes. This includes using or acquiring the patent for Injunction
its own use. The government may also acquire a patent by paying appropriate compensation and
Further, relief of injunction can be claimed under Section 38 of the Specific Relief Act, 1963.
this right extends to selling the patented invention.
Thus, a perpetual injunction (commonly known as a permanent injunction) is granted against the
infringer in the Civil Court.
Restored Patents
To maintain the validity of a patent, the patentee is required to pay renewal fees to the patent Damages
office within a specified time period. Failure to meet this requirement results in the patent The patentee has the right to seek liquidated or un liquidated damages from the infringer.
lapsing.
Accounts for profit
Use of Invention for Defence Purposes Whatever profit has been incurred by the infringer while infringing the patent, a patentee may
If an application for a patent is classified by the central government as relevant for defense claim that the same be transferred to their account.
purposes, the controller may issue a direction to prohibit or restrain the publication of
information about the invention.

Certificate of validity Step 4: Patent Publication for Public Opposition

The patentee may also seek remedy from the court that the certificate in his favour be issued, After the patent application process, the patent is published in an official journal and available
declaring the validity and duration of the certificate in favour of the patentee to safeguard the for public viewing and inspection. This allows the general public to raise objections to the patent
interest of the patentee.
on valid grounds.
Cost Step 5: Requesting Patent Examination
The patentee also has the right to claim cost for the expenses incurred for filing the lawsuit for
Examination of the patent application occurs only when a request for examination has been filed.
patent infringement in accordance with the provisions laid down in the Civil Procedure Code,
1908, and Civil Manual. The court may allow appropriate costs to the patentee if he/she claims This request must be submitted within 48 months of the patent filing date or the priority date.
for the same. The patent examiner reviews the application and issues an examination report containing
objections raised by the examiner. Responding to the examination report must be filed within 12
Process for Patent Registration in India months of issuance. The examiner can call the applicant or agent for a show-cause hearing to
resolve objections if necessary. This phase is also known as patent prosecution.
The patent registration process involves several stages, starting with Patent Search and ending
with issuing a Patent Registration Certificate. Here's a detailed explanation of the Patent Step 6: Grant of a Patent
Registration process in India:
After all objections in the examination report have been addressed and the examiner is satisfied
Step 1: Indian Patent Search with the applicant's response, the patent application is prepared for the grant of a Patent
Registration. This marks the end of the patent registration process. However, if the examiner is
The first step in the Patent Filing process in India is conducting a worldwide search to determine
not satisfied with the response and arguments from the applicant, they can reject the patent
the uniqueness of your invention. It's generally recommended to perform patent searches before
application.
applying for a patent. If your invention is found in prior art or closely resembles existing
inventions, the novelty of your invention could be challenged by the Indian Patent Office.
Therefore, conducting prior patent searches is crucial to assess the likelihood of your patent
being approved. Importance of Patent Registration

Step 2: Drafting Patent Specification It is not mandatory to have a patent registration, but it has its own set of benefits.

After conducting comprehensive global searches, need to draft a patent specification. This Patent Registration holds significant importance for various reasons:
specification is written in technical and legal language and may or may not include the inventor's  Legal Protection: It provides legal protection for the patent holder. In patent
claims. If it doesn't include claims, it's a provisional specification; if it does, it's considered a infringement, the patent holder has the right to take legal action and seek damages.
complete specification. Without registration, legal protection cannot be enforced.
Step 3: Patent Application Filing  Transferable Rights: Patent registration allows the patent holder to sell or transfer the
The provisional or complete specification is filed in Form 2, while the Patent Application form is patent, generating revenue.
filed in Form 1, as per the Indian Patent Act. If a provisional patent specification is filed, a  20-Year Validity: Once registered, a patent is legally protected for 20 years.
complete specification with the inventor's claims must be filed within 12 months of the initial
filing. There are six types of Patent Application forms, each serving different purposes,  Competitive Advantage: It offers a competitive edge to businesses, preventing
depending on the applicant's needs. competitors from using the patented invention for similar products.

 Asset Creation: A patent is an intellectual property right and an exclusive asset for a
business. It can be sold, transferred, or used for commercial agreements.