Updated: May 9
Author: Gokul Krishnan, V year of B.A.,LL.B. from The Central Law College, Salem
Patents can provide significant benefits to inventors and their businesses, such as exclusivity in the marketplace, licensing opportunities, and increased revenue. However, the patent process can also be time-consuming and expensive, requiring the assistance of a qualified patent attorney or agent. It is important for inventors to understand the patent process and the potential benefits and risks before embarking on the patenting process.
What is patent ?
A patent is a legal document granted by a government that gives the holder exclusive rights to prevent others from making, using, or selling an invention for a specified period of time, typically 20 years from the filing date of the application. In order to be granted a patent, the invention must meet certain criteria, including novelty, usefulness, and non-obviousness.
Patents are typically granted for inventions related to processes, machines, manufactures, and compositions of matter. In addition, certain types of inventions, such as software and business methods, may also be eligible for patent protection, although the rules and requirements can be more complex.
Patents are intended to promote innovation by providing inventors with a way to protect their ideas and investments, and to encourage the dissemination of knowledge and technological progress. However, there are also some criticisms of the patent system, including concerns about patent trolls, patent thickets, and the cost and complexity of obtaining and enforcing patents.
Patentable and non patentable
The following are some examples of inventions that may be considered patentable or non-patentable:
● A new and useful machine, process, manufacture, or composition of matter
● A new use for a known product or process
● Improvements to an existing invention, provided they meet the requirements for novelty and non-obviousness
● Certain types of software or computer-implemented inventions, provided they meet the requirements for novelty and non-obviousness and are not considered abstract ideas or mental processes
● Biotechnology inventions, such as genetically modified organisms or methods of gene editing, provided they meet the requirements for novelty and non-obviousness.
● Laws of nature, natural phenomena, or abstract ideas
● Inventions that are not useful, such as perpetual motion machines
● Inventions that are already in the public domain or that have been disclosed or made available to the public before the filing of a patent application
● Inventions that are contrary to public policy or morality, such as methods of human cloning or devices designed for illegal purposes
● Discoveries, such as a new species of plant or a new element, although these may be subject to other forms of protection, such as plant variety protection or trademark registration.
It is important to consult with a qualified patent attorney or agent to determine the specific requirements and eligibility of an invention for patent protection.
Procedure to obtain patent specification
The procedure to obtain a patent specification can vary depending on the jurisdiction, but generally, the following steps are involved:
1. Conduct a patent search: Before filing a patent application, it is important to conduct a thorough search to determine whether the invention is novel and non-obvious in light of existing patents and publications. This can be done using various databases and search tools.
2. Draft a patent specification: Once it has been determined that the invention is novel and non-obvious, a patent specification must be drafted. This is a legal document that describes the invention in detail, including how it works and how it is made. The patent specification must meet certain legal requirements and be written in a clear and concise manner.
3. File a patent application: The patent specification is typically filed as part of a patent application with the relevant patent office. The application must include various forms and fees, as well as any necessary supporting documents.
4. Prosecute the patent application: After the application is filed, it is reviewed by a patent examiner who will determine whether the invention meets the legal requirements for patentability. The examiner may issue office actions, which are formal communications that request additional information or amendments to the application.
5. Obtain a patent grant: If the patent application is found to be allowable, a patent grant will be issued. This gives the patent holder exclusive rights to the invention for a specified period of time, typically 20 years from the filing date of the application.
It is important to note that the patent application process can be complex and time-consuming, and it is generally recommended to seek the assistance of a qualified patent attorney or agent to navigate the process.
Opposition in invention
In general, opposition proceedings typically occur after a patent has been granted, but before it has been formally validated or enforced. The purpose of opposition is to provide a mechanism for third parties to challenge the validity of the patent, either on the basis that it is not novel, not inventive, or not sufficiently described.
The process for opposition may vary by jurisdiction, but generally involves the following steps:
1. Filing an opposition: A third party may file an opposition with the relevant patent office, typically within a specified time period after the grant of the patent. The opposition must include a statement of the grounds for opposition and any supporting evidence.
2. Examination of the opposition: The patent office will examine the opposition and determine whether it meets the requirements for admissibility. This may include verifying that the opposition was filed within the specified time period and that the opposition has provided sufficient evidence to support the grounds for opposition.
3. Response to the opposition: The patent holder will have an opportunity to respond to the opposition, typically within a specified time period. The response may include arguments and evidence to rebut the grounds for opposition.
4. Oral hearing: In some jurisdictions, an oral hearing may be held to allow both parties to present their case and respond to questions from the patent office.
5. Decision: The patent office will issue a decision on the opposition, either revoking the patent, maintaining the patent as granted, or maintaining the patent with amendments.
Opposition proceedings can be complex and may require the assistance of a qualified patent attorney or agent. It is important to note that the process for opposition and the grounds for opposition may vary by jurisdiction.
Power of Controller
The controller typically refers to the government official or agency responsible for overseeing the granting, registration, and maintenance of patents in a particular jurisdiction. The powers of the controller can vary depending on the jurisdiction, but generally include the following:
1. Examination of patent applications: The controller has the power to examine patent applications to determine whether the invention is novel, non-obvious, and sufficiently described to warrant patent protection.
2. Grant of patents: The controller has the power to grant patents to inventors who have met the legal requirements for patentability.
3. Enforcement of patent rights: The controller has the power to enforce patent rights, such as by issuing cease and desist orders to individuals or companies who are infringing on a patent holder's rights.
4. Revocation of patents: The controller has the power to revoke patents that have been granted improperly or that no longer meet the legal requirements for patentability.
5. Post-grant proceedings: The controller may have the power to oversee post-grant proceedings, such as opposition or revocation proceedings, in which a third party seeks to challenge the validity of a granted patent.
6. Maintenance of patent registers: The controller may be responsible for maintaining a register of patents that have been granted and their associated rights.
7. Policy-making: The controller may have the power to develop and implement policies related to patent law and practice, such as changes to the rules for patent examination or renewal fees.
It is important to note that the specific powers of the controller may vary by jurisdiction and may be subject to legal challenge or appeal. In addition, the role of the controller may be influenced by political or economic factors that can impact the administration of patent law.
In conclusion, obtaining a patent specification can be a complex and time-consuming process that involves conducting a patent search, drafting a patent specification, filing a patent application, prosecuting the application, and obtaining a patent grant. In some jurisdictions, opposition proceedings may also be available to challenge the validity of a granted patent. The powers of the controller in the patent process may vary by jurisdiction but generally include examining patent applications, granting patents, enforcing patent rights, revoking patents, overseeing post-grant proceedings, maintaining patent registers, and developing policies related to patent law and practice. It is important to seek the assistance of a qualified patent attorney or agent to navigate the patent process and ensure that patent rights are obtained and protected appropriately.