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    Intellectual Property & Patent – Important Questions: Must Read

    What are Intellectual Property Rights (IPR)?

    IPR is a general term covering patent, copyright, trademark, industrial designs, geographical indications, protection of layout design of integrated circuits and protection of undisclosed information (trade secrets).

    What are the legislations covering IPRs in India?

    • Patents: The Patents Act, 1970 and was amended in 1999 and 2002. The amended Act after the amendments made in 2002 came in to force on May 20, 2003.
    • Design: A new Design Act 2000 has been enacted superseding the earlier Designs Act 1911. Trade Mark: A new Trademarks Act, 1999 has been enacted superseding the earlier Trade and Merchandise Marks Act, 1958. The Act came in force from September 15, 2003
    • Copyright: The Copyright Act, 1957 as amended in 1983, 1984 and 1992, 1994,1999 and the Copyright Rules, 1958.
    • Layout Design of Integrated Circuits: The Semiconductor Integrated Circuit Layout Design Act 2000. (Enforcement pending)
    • Protection of Undisclosed Information: No exclusive legislation exists but the matter would be generally covered under the Contract Act, 1872.
    • Geographical Indications: The Geographical Indication of Goods (Registration and Protection) Act 1999.

    Who are responsible for administration of IPRs in the country?

    Patents, designs, trademarks and geographical indications are administered by the Controller General of Patents, Designs and Trademarks which is under the control of the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry. Copyright is under the charge of the Ministry of Human Resource Development. The Act on Layout Design of Integrated Circuits. Will be implemented by the Ministry of Communication and Information Technology.

    What is a Patent?

    A patent in an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available only for a limited period of time. However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent.

    These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the State, it can be revoked by the State under very special circumstances even if the patents has been sold or licensed or manufactured or marketed in the meantime. The patents right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries.

    What are the conditions to be satisfied by an invention to be patentable?

    An invention must satisfy the following three conditions of :

    1. Novelty
    2. Inventiveness (Non-obviousness)
    3. Usefulness

    What is considered as the date of patent?

    The date of patent is the date of filing the application for patent (whether provisional or complete). The term of the patent is counted from this date.

    What is the term of a patent in the Indian system?

    Term of the patent is 20 years from the date of filling for all types of inventions

    How does one keep a patent in force for the full patent term?

    A patent has to be maintained by paying the maintenance fees every year. If the maintenance fees is not paid, the patents will cease to remain in force and the invention becomes open to public. Anyone can then utilize the patent without the danger of infringing the patent.

    What are the essential patent documents to be generated and submitted by a potential patentee?

    There are two types of patents documents usually known as patent specification, namely
    • Provisional Specification and
    • Complete Specification

    What is the cost of filing a patent application in India?

    The Government fee for filing a patent application (complete/provisional) in India is Rs.750/- for individuals and Rs.3,000/- for legal entities. An applicant is now required to make a request for examining the patent application within 48 months of filing of the application. In case of applications filed before May 20, 2003 examination request has to be made within the 48 months of filing of the application or within 12 months from May 20, 2003 whichever is shorter. An individual has to pay Rs.1,000/- as examination fee and Rs.3,000/- for legal entities. A sealing fee of Rs.1,500/- for individuals and Rs.5,000/- for legal entities has to be paid at the time of grant (sealing) of patent.

    Does grant of a patent in one country affect its grant or refusal in another country?

    Each country is free to grant or refuse a patents on the bases of scrutiny by its patents office. This means that granting a patents in one country of the Union does not force other countries to grant the patents for the same invention. Also, the refusal of the patents in one country does not mean that it will be terminated in all the countries.

    What is industrial property?

    Industrial property includes:
    • Patents
    • Utility models
    • Industrial designs
    • Trademarks, service marks and trade names
    • Indication of source or appellations of origin (this is same as the geographical indications adopted in TRIPS);

    Is there any relationship between the Paris Convention and the TRIPS Agreement?

    It has been made mandatory for the member countries of the TRIPS Agreement to comply with the Article 1 to 12 and Article 19 of the Paris Convention.

    What is patent cooperation treaty (PCT)?

    The patent cooperation treaty (PCT) is a multilateral treaty entered into force in 1978. Through PCT, an inventor of a member country (Contracting state of PCT can simultaneously obtain priority for his/her Invention in all/ any of the member countries, without having to file a separate application in the countries of interest , by designating them in the PCT application. India joined the PCT on December 7, 1998.

    Who coordinates the activities of PCT ?

    All activities related to PCT are coordinated by the World Intellectual Property Organization (WIPO) situated in Geneva.

    Will an international application designating India be treated as an application for grant of patent under the 1970 Act?

    Yes, an international application designating India shall be treated as an application for patents under the Act.

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