What exactly
are patents?
An invention is a novel idea, which permits in practice the solution to a
specific problem in technology. It provides for something that did not exist
before, which is different from a discovery of something that existed in
nature, but was not known. An improvement of an invention may itself be an
invention.
A patent is a form of protection or a negative grant by the government to
the owner of the invention, which prevents others from using the invention
for commercial gain.
As you'd probably know, it can be for processes or products, and is for 15-20
years. Importantly, it has territorial limitations: a patent issued in a
country covers what is made, used or sold in that country.
Are
all inventions patentable?
No. To be patentable an invention must satisfy certain
definite criteria. first of all it must qualify as an invention
according to the law of the concerned country. It must
be novel. It must be non-obvious, which means it involve
an inventive step. It must be useful, that is, capable
of industrial application. It must not fall within any
of the categories specifically excluded by national law.
A term you'll come across is prior art. An invention should clearly not be
part of prior art or state of the art, which means simply that it must not
be known before the date of filing of the application.
What
categories do our laws exclude?
The 1970 Patents Act defines what are not inventions. Among others, these
include `inventions' which are frivolous, which are contradictory to established
nature law, those which are contrary to law or morality / injurious to public
health and discoveries of a scientific principle or the formulation of abstract
theory.
Also out are, a mere discovery of any new use for a known substance or the
mere use of known process or machine. Unless such known process results in
a new product or employs at least one new reactant, methods for agriculture
or horticulture and any process for treatment of human beings, plants or
animals to render them free of disease or to enhance their economic value.
Inventions relating to atomic energy are not patentable. As per the 1970
law, food, medicines and drugs including substances obtained by chemical
processes were granted only process and not product patent.
As per amendments, this changes, with the law recognizing product patents
in addition to process patents.
How
is a patent protected internationally?
There are two treaties, both of which have been signed
by India, which are important in this regard, the Paris
Convention and the Patent Co-operation Treaty.
The Paris Convention for the Protection of Property contains the rules for
protecting an invention internationally, an important provision of which
is the national treatment principle. This says that in all member states,
national applicants and applicants from other Paris Union member states have
the same rights.
Another important point is the right of priority, which means that the date
of an application in one member-state is taken into account in all member
states, if the subsequent applications are filed within 12 months from the
first filing. Under the Patent Co-operation Treaty it is possible to file
a single international patent application which has equivalent effect in
all states designated in the application
What
is patenting like in the US?
The US typically tends to allow broader patent claims
than other countries. For example, patents are now being
granted for ideas, concepts, biotech products, new business
methods, mathematical algorithms and e-commerce products.
Genetically altered life forms have been patented, for example, a bacterium
genetically tailored to digest oil slicks. Adapted from interactive session
on Indian Patent Law: Approaches/ BCCI, Assocham, IMC and the ministry of
industry
(Courtesy: Economic
Times, India)
For frequently asked questions on patenting in India, please visit www.indianpatents.org and www.delhi.nic.in,
maintained by 'Technology Information Forecasting and assessment council'
and 'National Informatics Center' respectively