Patent FAQ

A patent protects the invention. It protects it from being infringed upon by a third person. Moreover, getting a patent essentially means that the inventor has the exclusive right to use the invention. This, in effect means that the inventor can gain revenue from the use of the invention. A patent also enable the inventor to exclusively modify and better the invention.

According to the Patents Act 1970, inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to the person skilled in the art. Therefore, the invention should add to the existing body of technology.

Industrial applicability (also termed as Industrial Application) is a requirement for getting a patent. Under this, a patent can only be granted when an invention is susceptible of industrial application, i.e. the  invention which can be made or used in some kind of industry. 

 

Inventions that fall under S 3 and 4 of the Patents Act cannot be patented. These include inventions relating to atomic energy, inventions against public morality and decency, agricultural and horticultural methods, medical and surgical processes etc. Section 3 of the Indian Patents Act specifically lists out 16 exclusions to patenting.

The first step for filing for a patent is to draft the patent specification (complete or provisional).

The types of applications are • Ordinary application • PCT application • Convention application • Divisional application • Patent of addition.

An applicant can file an additional patent application in India for an improvement or modification of the main patent or main patent application [also referred ‘parent patent’]. The applicant for the patent of addition should be same as that of main patent application. The patent of addition shall not be granted until the main patent has been granted.

A divisional application is when a patent Application discloses more than one invention the application will have to be divided depending on the number of inventions it discloses. You can learn more at our patent filing services.

Filing a patent is an expensive procedure but worth it if you patent is commercially viable.

A patent search is conducted before filing a patent application to find the prior arts to evaluate novelty and patentability. It involves searching for inventions that are similar to the Applicant’s invention and determining the value addition of the Applicant’s invention, if any over the prior arts.

Prior art refers to all information including patents and/or published patent applications, journal, publication, or any form made available to public, before the date of invention or to the specific technology. You can learn more about prior art search services.

The motivation for performing the prior art search is to precisely draw out the need of the present innovation. Based on the search report, it will clearly specify the technical issues connected with the current technology and provide solutions for the technical issues and the variance between the prior art and an invention for which the search needed

Every patent application must be accompanied by a provisional or complete patent specification.

A patent specification sets the boundary for the protection sought by an invention. It is for this reason that drafting a patent specification requires utmost care and caution. It defines the legal limits of protection that an invention is entitled to.

When an invention has reached a stage where it can be disclosed on paper but it is not complete, a provisional patent application may be filed to claim a priority date. A provisional specification reveals the invention for which the patent is sought sans the claims. This means that while the invention is disclosed, the formal claims need not be submitted just yet. A provisional specification helps an applicant in securing a priority date.

A complete specification is the final specification. It sets the boundary for the protection claimed by the invention. It must contain the formal claims and must be drafted meticulously with utmost care.

A complete specification is one that is given when the invention is complete. On the other hand, a provisional application is submitted when the invention is at a stage where it can be disclosed on paper but has not yet reached the final stage i.e. it is not complete. After filing a provisional specification the complete specification must be filed within 12 months of filing the provisional specification.

The date of filing the application (provisional or complete) for the patent is the priority date for that application.

Securing a priority date helps the applicant circumvent any similar inventions that might be developed. It acts a proof as to when the invention was completed. Also, the term of the patent is counted from this date.

Definitely not. A patent will protect the invention only in the country in which it is filed. This means that a patent needs to be filed in every country that it seeks protection from. International patent applications provide some solace in this regard. For example, a PCT Application allows the inventor to test the market in different countries before filing for a patent in that country.

A global protection can be sought through two ways. The first is filing an individual patent application in each of the countries the patentee wishes to seek patent protection. The second means by which a global protection can be sought is by way of a PCT (Patent Cooperation Treaty) Application. A PCT application allows the patentee to seek patent protection in different (signatory) countries at the same time through a single application.

A global protection can be sought through two ways. The first is filing an individual patent application in each of the countries the patentee wishes to seek patent protection. The second means by which a global protection can be sought is by way of a PCT (Patent Cooperation Treaty) Application. A PCT application allows the patentee to seek patent protection in different (signatory) countries at the same time through a single application.

Patent Cooperation Treaty is a means of filing an international patent application. The PCT is recognized by as many as 150 countries.

When an application is filed under the PCT there are two phases; the international phase and the national phase. In the international phase the patent search is conducted by an International Search Authority [ISA]. The international phase does not result in the grant of a patent. It only completes the initial formality with regard to the application.

The international phase is followed by the national phase in which the applicant must file national applications in each country that he chooses to enter within 30-31 months from the date of international filing or the priority date, whichever is earlier.

A national phase PCT Application must be filed in India within 31 months from the priority date or the date of international filing.

Filing a convention application allows the applicant to claim a priority date if the same or substantially similar application has been filed in one or more of the convention countries.

A patent may be transferred by way of Assignment or License. Assignment results in the transfer of ownership of a patent whereas a license results in the transfer of the rights attached to the patent in return for royalty. In a license the ownership of a patent is retained by the inventor. Assignment and license of a patent enables the inventor to earn revenue from the patent.

A patent protection is granted for a period of 20 years from the date of filing the application for the patent. After the expiry of twenty years, the patent falls into public domain.

After a patent is granted, patent annuity fee must be paid every year, after the third year, in order to keep the patent in force. From the third year onwards a patent annuity fee needs to be paid before the end of the succeeding year, to keep the patent in force

When a third-party uses a patent without the permission/ authorization of the patentee or violates the exclusive rights conferred on the patentee it amounts to patent infringement.

The Indian Patents Act confers exclusive rights on the patentee for making, importing, using, offering for sale or selling the subject-matter of the patent.

The Indian Patents Act, 1970 allows the enforcement of patent rights by way of filing a suit for patent infringement. In the event of infringement of a patent, the court may order for an injunction and at the option of the plaintiff may also order for damages or account of profits.

Trademark FAQs

A trademark is a distinctive sign or indicator used by an individual or an organisation and is applied to the articles of commerce so as to identify the products of one trader from those of another.
 
Trademark is defined under Section 2 (zb) of the Trade Marks Act, 1999 as, "a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours."
 
A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any such combinations.

By filing a trademark application with Indian Trademark Registry, you can protect your trademark. BMC makes it easy for anyone to file for Trademark application. For more details, please fill the above details and Get Started Now.

Any Individual Person, Company, Trust, NGO, even Govt. agency can apply for Trademark.

Business name, product name, brand name, logo or slogan can be trademarked.

Trademark search is done to check if the name to be registered is already taken by others or is closely similar to existing trademarks in trademark database. Proper trademark search is important in trademark registration process.

Trademark consultant is a lawyer or attorney specialised in Trademark laws. They are also known as Trademark Agents.

Government Fees for each trademark application is Rs. 4000, trademark consultant fees ranges from Rs. 1499 to Rs. 3000.

Firstly detailed trademark check is conducted, after that one page authority letter is signed by the owner, then the Consultant files the application with the trademark registry.

You can use (TM) mark as soon as the Trademark application is filed and you receive acknowledgement receipt. (R) mark can be used once it is registered.

Every 10 years the trademark to be renewed.

Copyright FAQs

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is important to note that Copyright does not protect the ideas but protects the expression of the ideas.

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses.

Ideas, procedures, methods of operation or mathematical concepts as such, titles, or names, short word combinations, slogans, short phrases, methods, plots or factual information are not protected by Copyright.

Any individual who is an author or rights owner or assignee or legal heir can file application for copyright of a work.

Applications can be filed both online and through Physical mode. Physical applications have to be directed to:

Copyright Division.
Department Of Industrial Policy & Promotion,
Ministry of Commerce and Industry;
G-30 Super Market August Kranti Bhawan
Bhikaji Kama Palace
New Delhi- 110066

It is the originality of the work that is mandatory for the registration and not the quality of the work.

After application has been filed and diary number has been allocated, applicant has to wait for a mandatory period of 30 days to check if any objection is filed in the Copyright office against applicant’s claim that particular work is created by him. If such objection is filed it may take another one month time to decide as to whether the work could be registered by the Registrar of Copyrights after giving an opportunity of hearing the matter from both the parties. If no objection is filed then application goes for scrutiny from the examiners. If any discrepancy is found the applicant is given 30 days time to remove the same. Therefore, it may take 2 to 3 months time for registration of any work in the normal course.

A web-site contains several works such as literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films and broadcastings and computer software too. Separate applications have to be filed for registration of all these works.

Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.

Copyright owner has two types of rights related to his work:

Economic Rights: Economic rights include for example right of reproduction, right of performance, right of broadcasting and right of communication which are derived from right of performance, rights of translation and adaptation.

Moral Rights: These are the rights that allow owner to maintain his image. These rights allow author to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done even after the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. It’s important to note that moral rights remain with original creator even after whole or in part assignment of the work.

Term of the protection depends on the type of work. Generally, it’s until the expiration of the 50th year after the author’s death. In case of anonymous work, it’s until 50th year after the work has been lawfully made available to the public. In case of pseudonymous work, it’s until 50thyear after the work has been lawfully made available to the public, but if author leaves no doubt about the identity or reveals the identity of his or her work, the general rule applies. In case of Audiovisual (cinematographic) works, it’s 50 years after the making available of the work to the public (“release”) or if such event did not take place, then from the creation of the work. In case of applied art and photographic works, it’s 25 years from the creation of the work.

Except, WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886, the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

Section 51 of the Act deals with the provisions related to infringement of the Copyright. Section 52 of the Act provides a detailed list of acts that do not constitute infringement. Owner of the copyright can seek criminal and civil remedies against accused infringer.

Geographical Indications FAQs

The term GI has been defined as "Geographical Indications", in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.

Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering geographical indication in relation to such goods shall apply in writing to the Registrar in such' form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication.

Any association of persons or of producers or any organisation or authority established by or under the law can be a registered proprietor. Their name should be entered in the Register of Geographical Indication as registered proprietor for the Geographical Indication applied for.

An authorised user has the exclusive rights to the use of geographical indication in relation to goods in respect of which it is registered.

Authorised user’ is any person claiming to be the producer of the goods in respect of which a geographical indication has been registered. For becoming an authorized user the person has to apply in writing to the Registrar in prescribed manner and by paying requisite fee.

‘Producer’ in relation to goods, means any person who :-

  • Produces, processes or packages agricultural goods
  • Exploits natural goods
  • Makes or manufactures handicraft or industrial goods.

No, a GI cannot be registered if :- 

  • its use is likely to deceive or cause confusion or be contrary to any law
  • it comprises or contains scandalous or obscene matter or any matter likely to hurt religious susceptibilities of any class or section of the citizens of India
  • it is a generic name
  • it has ceased to be protected in their country of origin or which have fallen into disuse in that country
  • it is falsely represented by persons claiming that goods originate in another territory, region or locality as the case may be

A sentence of imprisonment for a term between six months to three years and a fine between fifty thousand rupees and two lakh rupees is provided in the Act. The court may reduce the punishment under special circumstances.

The registration of a GI shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.

Design FAQs

Design’ means only the features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle or construction or anything which is in substance a mere mechanical device, and does not include any trade mark, as define in clause (v) of sub-section of Section 2 of the Trade and Merchandise Marks Act, 1958, property mark or artistic works as defined under Section 2(c) of the Copyright Act, 1957.

Under the Designs Act, 2000 the "article" means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately.

Object of the Designs Act is to protect new or original designs so created to be applied or applicable to particular article to be manufactured by Industrial Process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The important purpose of design Registration is to see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.

No. Because once the alleged Design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred ceases to exist. Article must have its existence independent of the Designs applied to it. [Design with respect to label was held not registrable, by an Order on civil original case No. 9-D of 1963, Punjab, High Court]. So, the Design as applied to an article should be integral with the article itself.

When an application for registration of a Design is in order, it is accepted and registered and then a certificate of registration is issued to the applicant. However, a separate request should be made to the Controller for obtaining a certified copy of the certificate for legal proceeding with requisite fee.

The Register of Designs is a document maintained by The Patent Office, Kolkata as a statutory requirement. It contains the design number, class number, date of filing (in this country) and reciprocity date (if any), name and address of Proprietor and such other matters as would affect the validity of proprietorship of the design and it is open for public inspection on payment of prescribed fee & extract from register may also be obtained on request with the prescribed fee.

The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.

The duration of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date. This initial period of registration may be extended by further period of 5 years on an application made in Form-3 accompanied by prescribed fees to the Controller before the expiry of the said initial period of ten years. The proprietor of a design may make application for such extension even as soon as the design is registered.

The date of registration except in case of priority is the actual date of filing of the application. In case of registration of design with priority, the date of registration is the date of making an application in the reciprocal country.

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