Patents are monopoly rights granted to any person for creating a new product or process with an inventive step which can put into industrial purpose. A patent can be registered for biological inventions such as designs, accessories, computer software, cosmetic products etc, and business methods such as chemical formula, compound, process, decorative items, nanochip technology, containers, computer hardwares etc. In India, Patent office has its headquarter in Kolkata with branch offices located in New Delhi, Mumbai and Chennai.
Search and Clearance
Clearance searches or patent searches are primarily conducted to identify probable patent barriers on the commercialization of any new product or technology. It is essential to conduct a proper search regarding patents at a preliminary stage to avoid violation of any active patent. There is huge amount of resources spend on the research and development of a new product or technology. Clients take a hasty decision to claim patent over such invention without conducting any research and filing for patent application. At a later stage, such an action causes obstacles and loss to the business venture in terms of time and money. There is a probable risk of already existing patent which would lead to losing the patent on such product. Therefore, it is essential to conduct proper novelty search with the help of experienced patent professionals. To make the job easy for clients, experienced professionals conduct meticulous patent searches after which filing of a patent application is recommended. In India, patent search is conducted in the following ways:
- Freedom to Operate search: Such comprehensive search and analysis of patent literature is conducted to identify active patents or patents whose term is yet to lapse. This is done to avoid the risk of infringing or violating the rights of other patent owners.
- Novelty and Patentability Search: Conducting novelty search helps to identify whether the invention in question is patentable. Keywords relevant to the invention are used to conduct such search.
- Patent Prior Art/State of Art Search: An invention found in prior art cannot be considered novel, hence cannot be patented. It identifies the existing loopholes or grey areas and solutions in the existing technology thereby bringing a clear distinction between prior at and claimed invention.
- Validity/Invalidity Search: At times, examiners while conducting thorough search, skip a prior art search which might be essential to declare a patent invalid. Such a search is performed to search any missed prior arts so that a patent can be held invalid.
Intellect Juris provides for patent search services, assisting clients at each step to register a patent and exploit such business innovations. Conducting search is a complex rather important process that is done with precision. We facilitate our clients in drafting as well as filing patent application to claim the patent in the rightful manner.
Registration of Patents
In India, a patent application can be filed in the following manner:
- Ordinary Application
- Provisional or Complete Application
- Convention Patent Application
- PCT National Phase Patent Application
- Application for Patent of Addition
- Divisional Application
Registration process involves filing of patent application, electronic data processing, classification, and publication of application, examination by examiner of patents and pre or post grant opposition which is either allowed or denied by the Controller of Patents. A patent application shall be filed along with provisional specification or complete specification, drawings and abstract of the invention, information and undertaking listing the number, filing date and current status of each foreign patent application, priority document (if any) with the prescribed fees to the appropriate Patent office. Web based filing facility can also be availed to submit their application in time. On filing of required data and submission of requisite fees, acknowledgment slip is received which can be used for future reference. On filing of application with provisional specification, complete specification is to be filed within twelve months from the date of filing provisional application. Thereafter, applicant may request for early publication or publication post 18 months from the priority date. The application is published in the Official Journal. Any person may file an opposition by way of representation to the Controller against the grant of Patent, at the appropriate office, at any time after publication of patent application but before the grant of Patent.
The request for examination/ expedited examination is filed where after application received is examined thoroughly after which first examination report is forwarded to the applicant stating the objections or further requirements. The applicant has to respond in about six months, with an extension of three months from the date of first examination report. If all the objections are met, Controller shall allow Grant of Patent. On the grant of patent, every patent is allotted a serial number by the electronic system. A Certificate of Patent is generated in the prescribed format and an entry in the e-register is made simultaneously. In the present electronic system, the date of recordal of Patent in the Register of Patents is the same as the date of grant of Patent by the Controller. The fact that the patent has been granted is published in the official journal of the Patent Office. A post-grant opposition can be filed by any person interested within twelve months from the date of publication of grant. Such matters are decided by the Opposition Board and decision is passed by the Controller. Matters decided by the Controller of Patents can be appealed at the Intellectual Property Appellate Board.
The term of patent in India is for twenty years from the date of filing the patent application, irrespective of provisional or complete specification after which such patent comes into public domain. Registration of patent in a particular country gives protection in that country only. However, India is a part of the Patent Cooperation Treaty (PCT) in 1998 that allows protection of patent rights in all the contracting states, saving time as well as efforts for applicants seeking protection in various countries. It has also ratified the WIPO Paris Convention for the Protection of Industrial Property, 1883.
In the present technology driven world, scientific methods and innovative ideas are main pillars for development. An inventor developing such a novel idea devotes years into the research and development. Huge amount of money is also spent in the process to put together such inventions. Therefore, it is essential to protect it from being misused or stolen by others. Using colorable imitation of the invention, carrying essential features of the invention, immaterial variation of invention, mechanical equivalents all amount to infringement of patents under the Indian Patent Act, 1970.
In India, the patent holder enjoys exclusive right on making, using, importing or selling such patented inventions and violation of such rights would cause infringement. There are two kinds of infringement:
- direct patent infringement and
- indirect patent infringement
- – infringement by inducement
- – contributory infringement
A suit for infringement can be filed with the District Court or High Court in India which provide for the following redressal:
A suit for infringement can be filed for which the following remedies can be availed under the Act:
- Temporary Injunction/ Interlocutory Injunction
- Permanent Injunction
- Anton Piller order or seizure, forfeiture or destruction of infringed goods or materials.
- – Lost profits
- – Reasonable Royalty
In this regard, the patent owner can approach the Collector of Customs to prohibit the entry of infringing goods or materials into the Indian territory. It is the duty of the owner to provide for the requisite information necessary to prevent such entry.
Intellect Juris has a well experienced team that is proficient to handle patent disputes and litigation matters related to patents. Our team focuses on easing the transaction for the clients to register a patent by dealing with vital matters such as enforcement of rights against infringement and other court related issues.
The valuation of a company amplifies with the technical progress made and creation of scientific discoveries. Innovative ideas need to be developed and created into a new and useful product to be commercially successful. There is huge amount of investments made by the clients to develop a pioneering product and Intellect Juris provide assistance to develop a suitable patent portfolio to establish competitive advantage in the relevant market. We, at Intellect Juris assist our clients by devising and implementing strategies to enjoy the patent rights on such innovations, including the following:
- Patents licensing and assignment agreements
- Confidentiality or non disclosure agreements
- Royalty agreements
- Agreement on Joint Ventures and other alliances such as mergers and acquisitions
Team at Intellect Juris handles each case with the sole intent to facilitate the clients achieve the maximum worth of such IP assets through valuation, technological evaluation, negotiation strategies and conducting due diligence etc.