What cannot be Patented in India? And process on “How to apply for a Patent in India?”

Home Blog What cannot be Patented in India? And process on “How to apply for a Patent in India?”

Overview

The patent in general terms can have multiple meanings. A patent is an instrument or a tool that exclusively gives the rights to the owner regarding its utility. 

When we see the legal definition, a Patent is a form of preservation of Intellectual Property (IP) which is an exclusive right granted solely for an invention of a product, process, formula, or anything which provides a technical solution to a problem. The term of a patent in India lasts for twenty years from the date of filing the application for a patent. 

Talking about the patent one must know the Patentability Criteria for an invention or innovation. The following three criteria justify the invention to get patented:

  • Invention should be Novel.
  • The element of the Inventive step that is, technical advancement is a must.
  • It must be capable of Industrial use or it must have utility application.

According to section 3 of the Patent Act 1970, the following are out of the purview of inventions:

  1. An invention that is frivolous or which claims anything obviously contrary to well-established natural laws
  2. An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal, or plant life or health or to the environment
  3. The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature.
  4. The mere discovery of a new form of a known substance that does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
  5. A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.
  6. The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
  7. Any method of agriculture or horticulture.
  8. Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic, or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
  9. Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals.
  10. A mathematical or business method or a computer program per se or algorithms. 
  11. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions. 
  12. A mere scheme or rule or method of performing a mental act or method of playing a game.
  13.  Presentation of information
  14.  topography of integrated circuits;
  15.  an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.

Section 4 of the act also states that inventions which are related to atomic energies are not patentable. 

How to apply for a Patent in India?

By patent registration, the owner of the invention gets a statutory right over his invention, and therefore for a unique innovative invention, the patent registration plays a great role. A registered patent prevents the third party to manufacture, using, offering to sell, selling, importing, distributing, and licensing. 

Documents required for Patent registration:

Form 1 (Application for grant of Patent)

  • Identity and address proof of the inventor and Assignee.

  • Contact details 

  • Information corresponding to prior patents application relating to the current invention (already filed)

  • Declaration for other information

Form 2 (Provisional/ Complete Specification)

  • It is used to furnish the specification of the patent

  • It may be provisional or a complete patent specification

Form 3 (Statement and Undertaking under section 8)

  • Particulars of assignments 

  • Details of foreign filing

Form 5 (Declaration of Inventorship)

This application declares the inventor of the current patent application.

Other documents related to:

  • Background of invention 

  • Disclosure needs of the invention 

  • Summary and how the invention works

Other Important forms are forms 18, 9, and 26 which can be filed by the respective person as mentioned in the rules.

Procedure to file the patent 
 

Step 1: Doing the Patentability search and hiring a professional for guiding the right procedure for registration.

Step 2: Drafting of the Patent application where the details of the patent will be mentioned. It will be applied online by creating the user id and password for the profile.

Step 3: Filing of the Application, where the inventor can file for a provisional or complete application for their invention.

Step 4: Once the application is filed it is authorized by Indian Patent Office and simultaneously it publishes the Application in the official Patent and Design Journal.

Step 5: Examination of application is done on the basis of the patentability of the Invention and considering the prior art information of the invention.
Here the examiner can also raise objections on the application by scrutinizing the facts and details in the application. The objections are raised in the Examination report.

Step 6: When the Examination report is handled by the inventor then he/she has to revert upon such examination report within six months (can be further extended to three months).

Step 7: Once the above procedures are completed the Indian Patent Office grants the Registration of the patent to the applicant and the Patent is published in the Patent Gazette.

It is to be noticed that the false representation of the subject matter of the application for the patent is punishable with the fine of almost ₹. 1,00,000. 
 


Author : Aditi

Date     : 01-Sep-2022


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