What is Patent ?

Dr Dipak Nath *

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling public disclosure of the invention. The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection).

In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent does not give a right to make or use or sell an invention. Rather, a patent provides, from a legal standpoint, the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date subject to the payment of maintenance fees.

A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.

A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.

If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.Some countries have "working provisions" that require the invention be exploited in the jurisdiction it covers.

A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for patentability in the relevant country.

Patent licensing agreements are contracts in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, and/or import the claimed invention, usually in return for a royalty or other compensation.

It is common for companies engaged in complex technical fields to enter into multiple license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to share the benefits of using each other's patented inventions.

The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are granted by national or regional patent offices.A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature.

When a patent application is published, the invention disclosed in the application becomes prior art and enters the public domain (if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally becoming prior art against anyone (including the applicant) who might seek patent protection for the invention in those countries.

Commonly, a nation or a group of nations forms a patent office with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts.The authority for patent statutes in different countries varies.

In India, the Patents Act is the central body dealing with the filing and regulation of an existing and new patent. This Act suggests that the inventor, his assignee or one of his legal representatives (in case the inventor is deceased) can apply for one in the head office of Indian Patent Office or the branches of the office, depending on the jurisdiction of the applicant.In case the applicant is not an Indian citizen, he or she must file the application in their respective jurisdiction (where the address for service of the applicant is located).

Steps for application of patent:One can choose to apply for a patent all by own or take help from registered agents. When it comes to the cost of getting a patent, the following two elements come into the picture a) Government fees for forms and renewals and b) If one chooses to have an agent, then the charges for the professional. It is always recommended to get a patent through a registered agent.

The steps required to apply for a patent are

Step 01: Invention disclosure- The first step is to disclose the invention to the professional. This is done by signing a non-disclosure agreement. It is recommended to submit each known fact about the invention.

Step 02: Patentability search- Usually, a professional charge a fee (approx INR 10,000 to INR 20,000) at this step. At this stage, professional performs extensive research for prior evidence in all the possible databases. Further, he or she builds a patentability search report based on the invention.

Step 03: Decision to file an application for patent- This is where the actual process begins. After detailed research about (any) existing history of the invention, one can decide if he or she wants to go ahead with the patent application filing. The invention must have an 'inventive step' as compared with existing prior art pieces to qualify for a patent. It must have either 'technical advanced' or 'economically significant' or both, over any existing piece of arts.

Step 04: Patent drafting- One can choose to draft the application on own or take a professional's help to do this. If chooses to take help, he or she might have to pay somewhere around INR 20,000 to INR 30,000. This is one of the most crucial steps of the entire process. It requires both technical and legal understanding. If not drafted the right way, all the efforts you out in gets wasted. Hence, it's a good idea to take professional help here.

Step 05: Filing the patent application- After review of the patent draft and are satisfied with the scope and details, one can file the patent application in a prescribed manner with appropriate forms with fees. The need of fees of INR 1,600 or 4,000 or 8,000 (based on the type of application) while submitting the patent application in the patent office. If one do not file a request for early publication, the patent application will be published on expiry of 18 months.

Step 06: Request for examination- This is the step where the applicant is required to request the Indian patent office to examine the patent application, within 48 hours. Request for examination fees ranges from INR 4,000 to INR 20,000 (based on the type of applicant).

Step 07: Responding to objections (if any)- The draft and the report submitted to the officers in the patent office are thoroughly examined at this step. At this step, there is a chance for the inventor to communicate his novelty or inventive step over any other piece of art found during the assessment. If all the things are well clarified and solved, the patent application is almost ready to come to action.

Step 08: Grant of patent- If the application meets all the prescribed requirements, it is placed in order for the grant. Usually, the final grant of the application is notified through a journal that is published.

Step 09: Renewal of patent- Usually, a patent is in force for 20 years. On completion of 20 years, the owner is required to renew the patent by paying a small fee.

Although the entire process of filing a patent is long and complex, one must remember the importance it has. With digital advancements, it is probable that the process might get simplified and easy. Having a patent in place ensures that no individual can claim rights over the invention.

If at all there happens to be an infringement, one can take help from legal bodies and avoid the problems that can prove to be a hurdle in your growth. The basic idea of this system is to encourage the inventors to safeguard their own creations.