How to Apply for a Patent


How to Apply for Patent?

Following points must be taken in mind

1. Every application for patent should be made for one invention only.

2. Every international application under the Patent Cooperation Treaty (PCT) filed designating India, shall be deemed to be an application under this Act.

3. Along with an application, specification regarding patent should be filed. Where the provisional specification is filed, then a complete specification shall be filed within twelve months.

4. Where two or more applications in the name of the same applicant are filed with a provisional specification, the Controller may allow the filing of only one complete specification if all application relates to a single invention.

5. Where an application is accompanied by complete-specification, Controller may make a direction within 12 months to treat such specification as provisional.

Contents of Specifications:

All specifications whether provisional or complete must describe the invention by stating its title and subject matter.

 Every complete specification must describe the following:

1. Full description, operation, and method of use.

2. The best method of performing the invention, which claimant wants to protect.

3. Claim of claimant

4. Abstract of technical information.

Grant of Patent

Application for patent, if it is in order and not refused and not found to be in contravention of any provision of the Act, it shall be granted under the seal of patent office with the date.

Where a patent is not opposed or where the opposition has ended in favor of the applicant, Controller will grant the patent.

The controller shall publish the fact that patent has been granted. Sec 47 specifies some condition subject to which patent can be granted, viz

1. Any machine or article of which patent has been granted can be imported by Government.

2. Any process of which patent has been granted can be used by Government

3. Any machine or article of which patent has been granted can be used by any person for experiment or research purpose.

4. Sec 53 provides that term of the patent shall be twenty years from the date of application, which can be renewed on payment of renewal fees.

 

Request for Examination for the applied patent

When a request for examination has been made, Controller shall make reference to a specification and other documents to an examiner to make a report on following:

1. Whether the application is in accordance with provisions of this Act

2. Whether objection can be made for the applied patent

3. Results of examination or investigation

Report of Examiner and Consequences –

Where the examiner gives an adverse report which may require amendment, the Controller shall communicate the same to the applicant. Further, the Controller may either refuse the application or direct the applicant to amend the specification. A controller can also direct to “post-date” the application.

 if an applicant makes a request for a date which cannot be more than six months. Where Controller is of opinion that applied invention has been anticipated, he can refuse the application.

However, he shall not refuse if applicant either shows his early priority date or amends his complete-specification.

 Where Controller is of opinion that applied invention is already claimed in any other complete specification, he can direct that a reference to that other complete specification shall be inserted.

Publication of Application

Usually application is not open to the public for inspection, however, an applicant may request the Controller to publish his application before the expiry of the prescribed period. The controller shall publish such application unless where secrecy is required.

Publication shall include a date of application, number of application, name, and address of an applicant

From this date of publication, the applicant shall have the same privilege and rights as he has been granted the patent. This right is available till the date of actual grant, or rejection of an application. However, an applicant cannot institute any proceeding for infringement.

When can a  Patent Application be Refused -

 The controller can refuse the application or require an applicant to modify the application if:

Application or specification does not comply with a requirement of Act or Rules

1. The invention is such which is not patentable

2.  The application is made in violation of any other law

3.  The invention has been anticipated

4.   The controller can order for division of application if one application contains more than one claim for patent

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