Patents: Tool for Processional and Financial Prosperity

Priyanka Sardana and Vijay Sardana

People are by nature thinking species. They keep thinking and developing systems, products and processes to minimize the efforts and inputs and maximize the outputs and gains. Legal systems are developed to incentivise such creative individuals, institutions or organizations and to protect their creativity and to encourage others to innovate and to add value & welfare to the society. It is called a patent regime. Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced. Patented inventions have, in fact, pervaded every aspect of human life, from electric lighting (patents held by Edison and Swan) and plastic (patents held by Baekeland), to ballpoint pens (patents held by Biro) and microprocessors (patents held by Intel, for example).

What is Patent?

In a legal terminology a patent is an exclusive right granted for an invention, which can be a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. A patent provides protection for the invention to the owner of the patent. The owner can be an individual, or a group of people or organization. In order to be patentable, the invention must fulfill certain conditions as specified in the Patent Act.

Benefits of Patents

Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner's consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement.

A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. Under TRIPS agreement of WTO, the protection is granted for a limited period, generally 20 years. The patent owner may give permission to, or license other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent.

Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.

Once a patent expires, the protection ends, and an invention enters the public domain. The owner then no longer holds exclusive rights to the invention. It becomes available to commercial exploitation by others.

Legal Obligation for Patent Protection

All patent owners are under obligation to publicly disclose information on their invention in order to enrich the total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity and innovation. In this way, patents provide not only protection for the owner but valuable information and inspiration for future generations of researchers and inventors.

Requirements for seeking Patent

The first step in securing a patent is the filing of a patent application. The patent application generally contains the title of the invention, as well as an indication of its technical field; it must include the background and a description of the invention, in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied by visual materials such as drawings, plans, or diagrams to better describe the invention. The application also contains various "claims", that is, information which determines the extent of protection granted by the patent.

Basic Ingredients for Patent

An invention must, in general, fulfill the following conditions to be protected by a patent.

  • It must be of practical use;
  • It must show an element of novelty, that is, some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called "prior art".
  • The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field.

Finally, its subject matter must be accepted as "patentable" under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.

Who will grant the Patent?

A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the Indian Patent Office, US Patent and Trademark Office, European Patent Office and the African Regional Intellectual Property Organization. In the regional system, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders. Please note that at present, no "world patents" or "international patents" exist. In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which a person seeking patent protection for his invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.

How to get Patent in many countries at least cost?

To simplify the patenting in many countries WIPO administers Patent Cooperation Treaty. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.

Any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application.

Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommended to consult any practicing techno-legal professional who is specialized in intellectual property or the intellectual property offices of those countries in which one is are interested to get protection.

Searchable Internet patent databases have significantly facilitated the access to patent information. However, given the complexity of patent documents and the technical and legal skills required, it is advisable to contact a professional patent attorney with technical background so that he can understand your technical work clearly and help you in drafting if a high-quality patent search is required. Please note Patent is a techno-legal exercise and not just legal drafting only.

Important Caution for Innovators and Researchers

It is important to file a patent application before publicly disclosing the details of the invention. In general, any invention which is made public before an application is filed would be considered prior art (although the definition of the term "prior art" is not unified at the international level, in many countries, it consists of any information which has been made available to the public anywhere in the world by written or oral disclosure). In countries which apply the above definition of the term "prior art", the applicant's public disclosure of the invention prior to filing a patent application would prevent him/her from obtaining a valid patent for that invention, since such invention would not comply with the "novelty" requirement. Some countries, however, allow for a grace period, which provides a safeguard for applicants who disclosed their inventions before filing a patent application, and the novelty criteria may be interpreted differently depending on the applicable law.

If it is inevitable to disclose the invention to, for example, a potential investor or a business partner, before filing a patent application, such a disclosure should be accompanied by a confidentiality agreement.

Patent is thus an import way to recognize your capability but awareness about techno-legal requirements of patent procedure will help a person in taking benefits of legal system in the country. In coming articles we will discuss the same in detail. Meanwhile you can send the email with your queries to the authors.

 

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