PUBLICATION OF PATENT APPLICATION IN INDIA

One of the most important types of IPR, a patent, protects innovation by granting property rights to any form of an invention, including new products and innovative processes. It gives the inventor the right to prohibit others from using, manufacturing, importing, or selling the innovation without permission. Also, a patent provides the patentee with authority to allow a third party to use the invention and generate royalties.

The Patents Act, 1970, and the Patent Rules, 2003 regulate India's registration and protection of patents. Here, it is pertinent to note that the Patents Act of 1970 was further amended by the Patents (Amendment) Act, 2005 to extend product patent to all fields of technology, including food, drugs, chemicals, and microorganisms, and to repeal the provisions relating to Exclusive Marketing Rights (EMRs).

The 2005 Amendment also introduced a provision regarding compulsory licenses. The Patent Rules, 2003, was also recently amended by the Patent Rules, 2016. The Patents Act's object is to encourage new technology, scientific research, and industrial progress in the country.

According to Section 2 (m) of the Patents Act, 1970, a 'patent' means a patent for any invention granted under this Act. Here, it is imperative to look at the definition of an invention given under Section 2 (j) of the Act, which states that an 'invention' is a new product or process involving an inventive step and is capable of industrial application. Thus, a patent can be explained as a statutory right for an invention granted to the Government's patentee for a limited period.

As the Government grants a patent, it makes the ideal property of the innovator. Thus, the patentee has the right to exclude others from making, using, selling, and importing the patented product or process for producing that product without his consent. In India, a patent is granted for 20 years but must be renewed by the patentee every year by paying the renewal fee. It must be noted that one cannot obtain an international patent as patents are territorial rights.

Hence, a patent right granted in India is effective only within the territory of India. In simple words, if one seeks patent protection in a foreign country, the inventor must apply for a patent grant as per the intellectual property laws in that particular country.

Further, in India, an invention is patentable if related to a product or a new process, involving an inventive step and capable of industrial application. Such an invention must not fall into the category of inventions that are non-patentable under Section 3 and Section 4 of the Patents Act, 1970. In simple words, an invention is patentable if it meets the following criteria:

a) It should be novel

b) It should be non-obvious, and it should be an inventive step

c) It should be capable of industrial application.

d) It must not attract the provisions of Section 3 and Section 4 of the Patents Act, 1970.

Here, it is pertinent to note that the procedure for getting a patent is a little complex. Chapter III of the Patents Act, 1097 deals with the provisions regarding applications for patents. Getting a patent involves filing an application requesting the Indian Patent Office to examine the patent application.

Later, a First Examination Report is issued, allowing the applicant to clear the objections raised in the report. The applicant has 12 months to meet the requirements, and if not, the application is marked as abandoned. If all the requirements are adhered to within the stipulated period, the patent is granted.

Patent Office Journal

Once the application for a patent grant is filed with the Indian Patent Office, the application shall be published for public inspection within 18 months from filing or the priority date. According to the Patents Act, 1970, publishing the patent applications for public inspection in the Patent office Journal is mandatory, issued every Friday. The Journal is also available in electronic format on the website of the Patent Office, i.e., www.ipindia.gov.in.

The publication of the patent application in online format helps the applicant access the published patent applications online. However, it must be noted that the Patent Office's online database has Journals issued from 2005, and to access Journals before 2005; one must visit the Patent Office library. After the patent application is published in the Journal, the following details of the application come into the public domain:

1) Application Number

2) Name and address of the applicant

3) Title of the invention

4) Priority details, if any

5) Abstract for the application

Apart from information regarding the patent application, the Patent office Journal also contains information about the post grant publication, restoration of patents, notifications, a list of non-working patents, and public notices issued by the Patent Office. Further, an advantage of the patent application's publication in India is that it allows the patentee to have rights and privileges as if a patent is granted.

However, it must be noted that the applicant cannot file a suit for infringement of patent rights till the application is granted. This limitation has given rise to the concept of request for early publication. In case of early publication, the application is published before the prescribed period of 18 months.

Upon filing Form-9, the Controller shall publish the application within one month from the date of the request for early publication. Many applicants opt for early publication to enforce patent rights in case of infringement. Furthermore, another advantage of the patent application's publication is that it allows third parties to oppose the application for a grant on the grounds mentioned in the Patents Act, 1970.

Lastly, it must be noted that the Controller shall withhold the publication of the application in which secrecy direction has been imposed or if the application is abandoned or withdrawn. The information relating to the publication of the patent applications in India is published in the Patent Office Journal and published on the Patent Office's official website, accessible to the public worldwide. This helps the applicant to attract potential users or licensees for commercial purposes.

Author: Jinal Vyas