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Intellectual Property Legislation

The patents Act 1970
Intellectual property

Intellectual property is the creation and multiplication of human

intellect.

Intellectual property basically lies in the concept, idea, thoughts and

later applied in actual product , work or process.

It is created by incorporating information in tangible objects,capable of

multiplying in an unlimited number of times at different locations any where in
the world.

Intellectual property is divided in to two branches:

1) Industrial property- which includes Patents,designs,and trade marks and
2) Copyrights granted to authors, musicians, artists etc.

World Intellectual property Organization (WIPO)

Though patents, designs, trade marks and copyrights are popular
intellectual properties, according to WIPO intellectual property includes
following rights also :
a) Inventions in all fields of human endeavor
b) Scientific discoveries.,
c) Industrial designs
d) trademarks, service marks, and commercial names & designations.,
e) Literacy,artistic,and scientific works.,
f) performances of artists, programmers, and
g) protection against unfair competition.

The Patents Act 1970

A patent is a grant from the Government which confers on the

grantee , for a limited period of time, the exclusive privilege of making,
selling,and using the invention for which a patent has been granted and also
authorising others to do so.

The grant of patents for inventions in India is governed by the

Patents Act 1970 and the patents rules 1972.

A patent granted under the Act is subject to conditions stipulated in

section 47 of the Act.

INVENTION

Patent is granted to inventions.

Invention is something new which does not exist before.It is

the creative work of some one who got some idea spontaneously and by
physical operation converted it into practice.

An invention must have novelty and utility if it were to be patented.

An Invention is, therefore any new and useful:

1) art,process,method,or manner of manufacture;
2) a machine,apparatus,or other article; or
3) a substance produced by manufacture, and includes any new and useful
improvement of any of them
Some of the terms and Concepts under patent Act on

Patentee
means the person for the time being entered in the
register as the grantee or the proprietor of the patent.

Patent Article and Patent Process means respectively an

article or process in respect of which a patent is in force.

Patent Agent a person for the time being registered under this Act
as a patent Agent

Exclusive license: means a license from a patentee which confers on

the licensee ,or on the licensee and persons authorised by him,to the
exclusions of all other persons ( including the patentee)any right in respect of
patented invention,and exclusive licence shall be construed.

Patents of addition is a special type of patent issued to main

patent previously issued or in the process of issuing. and where there is
improvement or modification to the main patent.

Person interested includes a person engaged in ,or in

promoting,research in the same field as that to which the invention relates

True and First Inventor:

Invention is something new which does not exist before.It is

the creative work of some one who got some idea spontaneously and by
physical operation converted it into practice.

An invention must have novelty and utility if it were to be patented.

So a True inventor does not include either the first importer of an

invention in to India , or a person to whom an invention is first communicated
from out side India.

Legal representative
estate of a deceased person

Assignee includes the legal representative of a deceased assignee

and assignee of an assignee

Controller means The Controller General of Patents,Designs and

Trade Marks referred to in section 73(S2(1)(b)

Convention Application an application for a patent made by virtue

of Section 135(S2(1)(c)

means a person who in law represents the

Advantages of obtaining a PATENT

1.) The patentee get the exclusive right to use his invention
2.) The Patentee can bring a suit for infringement of his patent and pray for an
injunction , damages, or an account of profits against the person who infringes
his patent.
3)If the patentee does not have means to work with the invention commercially
, he can sell his patent and grant licenses to others to exploit the patent and
thereby earn money.
4) The holder of an exclusive license would have the right of the patentee .
He would also able to enforce such right by taking proceedings against the
infringement of the patent
5) The patentee can make improvement or modification in an invention
described in the complete specification of the main invention and obtain the
grant of patent for the improvement or modification as a patent of
addition

Procedure for Grant of patent (steps in Grant of patent )

(Section 6&7)

The person interested in obtaining a patent has to apply for the same.
1. Filing an APPLICATION for a PATENT with the patent office.
2.Examination of the application ( application Scruitiny)
3. Acceptance of the application and advertisement of such acceptance in the
Official Gazette.
4. Opposition to Grant of patent
5. Grant and sealing of patent.

Who can apply for a patent

*An application for a patent can be made by any of the following persons:
1. By any person claiming to be the true and first inventor of the Invention.
2. By any person being the assignee of the person claiming to be true and first
inventor in respect the right to make such an application
3. By legal representative of any deceased person who immediately before his
death was entitled to make such an application.
An application under sub section (1) may be made by any of the person
referred to there in, either alone or jointly with any person.
Company or firm as an applicant
A partnership firm , a private or limited
company or a corporation can also apply for a patent , but only as an assignee
of the inventor. Because such entities can not invent any thing
Government also can Apply for patent as an assignee An Employee
Invention by an employee does not necessarily belong to the employer , unless
there is a contract to the contrary. However ,any invention made in the course
of employment while performing duties as an employee , the invention belong
to the employer due to implied term of contract.
Government Servants are at liberty to apply for grant of patent directly to
patent office subject to any special condition of service applicable .

Defence Employees are not be eligible, except in the manner laid

down in the special regulations applicable to them

Kinds of Patents
As per the provisions of the Patent Act, normally three kinds of Patents are
granted:

1. Ordinary Patent Such a patent is normally obtained by filing application

under section 6(1) of the patent Act 1970.
2. Patents of Addition It is a patent for improvement in or modification of an
invention for which a patent application has already been made or it has been
granted. Section 54 and 56 contains provisions regarding this .
3. Patent in respect of convention this type of patents are granted to
persons outside India who are based in a country which has convention
,treaty , or arrangement with India for grant of patents on reciprocal basis to
Indian applicants under section 133. the convention countries are to be
specified by notification in the official Gazette by the Central Govt.

Application for such patent has to be made FIRST in the convention

country. Application for patent office in India can be made subsequently.

1. Filling of Application for patent

1. Every application for a patent shall be for one invention only and shall be
made in the prescribed form in TRPLICATE filled in the patent office.
2. In case if the application is made by virtue of an assignment , it should be
furnished with the application..i.e. the proof of the right to make application
3. It should clearly stated that the applicant is in possession of the invention
and shall name the owner claiming to be the true and first Inventor
4.Every such application shall be accompanied by a provisional or a
complete specification
5. It is mandatory to furnish description of the Invention.

2. Examination and acceptance of Application

The Complete Application for patent, and specification there to will be

referred by the Controller to an Examiner for making a report to him in
respect of the following matters:
A) whether the application and related documents are in accordance with
requirements of the ACT.
B)whether there is any lawful ground of objection to the grant of the patent
under this Act.
C) the result of investigation made under section 13 (Prior claim or
ANTICIPATION)
D) any other matter which may be prescribed.

3.Investigation as to anticipation OR prior claim

The examiner shall make such investigation as the controller may

direct for the purpose of ascertaining whether the invention, so far as claimed
in any claim of the complete specification, has been anticipated by
publication in India or else where in any document before the date of filing of
the applicants complete specifications.

4. Acceptance of Complete Specification and Advertisement

The Application for a Patent may be accepted by the controller at any

time if all the requirements are complied with.

On acceptance of the application, the controller shall give notice

thereof to the applicant and shall advertise in the official gazette that the
specification is accepted.

5.Opposition to Grant of Patent

Any person interested may give notice to the controller ,of opposition
to the grant of patent on any of the following grounds.

a)

The Applicant wrongfully obtained the

invention

b)

The invention has been published before the date of the claim

c)

Invention is already claimed in an application earlier dated

d)

6. Grant and Sealing of PATENT

e)

The controller will order to grant the patent and seal with the seal of
the patent office, if the application has not been opposed, or not refused by
the controller.

f)

The date on which the patent is sealed shall be entered in the patent
REGISTER., The date of patent will be the date of filing of complete
specification

Rights of Patentee
1)

To exploit the patent(to utilise the patent)

2)

To license the Patent to another

3)

To assign the patent to another

4)

To surrender the patent

5)

To sue for the infringement of the patent

Infringement of patents

The patent Act 1970 grants statutory right to patentee, his agents, and
licensees to work or exploit the Invention. If some other person violates and
encroaches up on their rights, it amounts Infringement.
Relief or Remedies for Infringement

Main provisions relating to rights against infringement are :

Rights against Infringement

1. Right of Exclusive licensee to take proceedings against infringement. by
instituting a suit in respect of infringement.
2. take proceedings against infringement under section 84, to prevent any
infringement.
3. Grant of Damages on infringement or account of profits.
4. The court may appoint an independent scientific adviser to assist the
court or to inquire and report upon any such fact.