Types of patents
i) Utility patents
ii) Design patents
iii) Plant patents
i) Utility patents
A utility patent may be available for inventions which are novel, useful, and non-obvious. Utility patents can be obtained for the utilitarian or functional aspects of an invention. Utility patents have a term of twenty years from the date of filling the patent application with the patent and trademark office, although term extensions are available in certain specific situations. During the term of a utility patent, maintenance fees must be paid in order to sustain the patent.
ii) Design patents
It can be granted to any one who invents a new, original ornamental design for an article of manufacture. A design patent protects the ornamental design (i.e. appearance) of the article. A design patent has duration of 14 years from the date of filing. Design patents are not subject to maintenance fee payments.
iii) Plant patents
Plant patent can be granted to any one who invents or discovers and reproduces a new variety of plant. A plant patent may be issued for the invention or discovery of a distinct and new variety of plants, which may be asexually reproduced. To qualify for this type of patent, the discovery or invention must be novel, distinct, and non-obvious. A plant patent has a term of 20 years from the date of filing.
Term of a Patent in the Indian System
a) Five years from the date of selling of the patent or seven years from the date of the patent (i.e the date of filing the complete specification) whichever period is shorter,for an invention claiming the method or process of manufacture of a substance,where the substance is intended or capable of being used as a drug,medicine or food.
b) Twenty years from the date of patent in respect of any other patentable invention.
Essential Patent documents to be submitted
There are two types of patent documents usually known as patent specification,namely
- Provisional specification
- Complete Specificaion
1. Provisional Specification
A provisional specification is usually filled to establish priority of the invention in case the disclosed invention is at a conceptual stage and a delay is expected in submitting full and specific description of the invention.Although,a patent application accompanied with provisional specification does not confer any legal patent rights to the applicants,it is however a very important document to establish the earliest ownership of an invention.Complete specification must be submitted within 12 months of filing the provisional specification.This period can be extended by 3 months.
2. Complete Specification
Submission of complete specification is necessary to obtain a patent.The contents of a complete specification would include the following:
Title of the invention
- Field to which invention belongs.
- Background of the invention including prior art giving drawbacks of the known inventions practices.
- Complete description of the invention along with experimental results.
- Drawings etc. essential for understanding the invention.
- Claims,which are statements,related to the invention on which legal proprietorship is being sought.Therefore the claims have to be drafted very carefully.
Criteria for Naming inventors in an Application for Patent
The name of inventors is normally decided on the basis of the following criteria:
- All persons who contribute towards development of patentable features of an invention should be named as inventors.
- All persons,who have made intellectual contribution in achieving the final results of the research work leading to a patent,should be named as inventor(s)
- A person who has not contributed intellectually in the development of an invention is not entitled to be included as an inventor.
A person who provided ideas needed to produce the ‘germs of the invention’ need not himself/herself carry out the experiments,construct the apparatus with his/her own hands or make the drawings himself/herself.The person may take the help of others.Such persons who have helped in conducting the experiments,constructing apparatus or making the drawing or models without providing any intellectual inputs are not entitled to be named as inventors.
Where to apply?
Application for the patent has to be filled in the respective patent office as mentioned below.The territorial jurisdiction is decided based on whether any of the following occurrences falls within the territory.
- Place of residence,domicile or business of the applicant(first mentioned applicant in the case of joint applicants)
- Place from where the invention actually originated.
- Address for services in India given by the applicant when he has no place of business or domicile in India.
A foreign applicant should give an address for service in India and the jurisdiction will be decided upon that.An applicant (Indian or foreigner) also can his Patent Agent’s address as address for serving documents,if he/she so wishes.
How to apply?
Steps involved in obtaining a Patent
- To file an application for patent accompanied with either a provisional specification or a complete specification
- To file complete specification,if provisional application was submitted earlier.
- Examination of the application by patent office.
- Acceptance of applications and publication in the gazette of accepted applications.
- Responding and satisfactory overcoming the opposition/objections,if any to the grant of patent.
- Sealing of patent
Application for patent(Form 1) in duplicate should be accompanied by the documents as indicated below. The fee(Rs./- for natural citizen of India or Rs./- for other than a citizen) can be paid within one month.
2) COPY RIGHTS
A copyright is a very particular and exclusive right even for reproduction of an original work. This is for material, aesthetic material, literacy, music, film, sound recording, broad casting, software and multimedia. This offers automatic right for safeguarding any original creation, which is not in need of registration but with limited time. It does not require the lawyer’s help for settlement.
Protection to copy right does not give any procedure, principle, concept or method or operation, irrespective of the format in which it is explained. In other words protection of copyright is limited to an inventor’s particular expression of an idea, concepts or process in a tangible medium. Copyright is sanctioned to prevent others from:
a) Copying the work
b) Publishing and selling copies commercially
c) Renting or lending the work in a free market
d) Doing or demonstrating the work in public
Works protected by Copyright
The types of copyright works are broadly categorized into:
a) Original literary,dramatic,artistic or musical works.
b) Sound recordings,films or broadcasts and
c) The typographical arrangement of published editions.
Literary work also includes:
- A table or compilation other than a database
- A computer program
- Preparatory design material for a computer program
- A database
Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner.
- Can copy the work
- Issue copies of the work to the public
- Rent or lend the work to the public
- Perform,show or play the work in public
- Communicate the work to the public-this includes broadcasting of a work and also electronic transmission and make an adaptation of the work or do an y of the above in relation to an adaptation.
The TRIPS agreement offers a minimum duration of copyright protection to the tune of the life of the inventor or author plus fifty years. Anyhow rights granted exclusively to the copy right owner may allow others in making fair use of the owner’s work, like for the purpose of review, comment, reporting, teaching, researches, etc. Of course, the impact of copying an inventor’s work’s commercial value is considered to find out whether the copying is for “fair use”. In order to secure protection for copy right, the particular work must be an original work made or written in a tangible medium of expression. The test for such originality consists of two conditions –
(1) work must originate from the inventor and not a copy from others’ works.
(2) the invention or work must have adequate amount of creativity.