What is a design patent?
A design patent offers the protection of the patent laws to ornamental designs. For example, a design patent can protect something such as what a shoe looks or what bicycle helmet looks like. The protection offered by a design patent is narrow because the underlying article itself is not protected; only it’s ornamental appearance. However, unlike with a utility patent, something need not be useful (that is, have utility) to qualify for a design patent.
What is a patent and how does it help a company?
A patent protects inventions that are novel and inventive. It grants an exclusive right to prevent others from making, using, selling, offering for sale or importing an invention in the country in which the patent is applied for. For example, if a patent is applied for in India the applicant will have the exclusive right to make, use, sell, offer for sale and import the invention in India.
A patent can be understood as a contract between an inventor and the government where the government grants the exclusive rights to the inventor in exchange of a detailed explanation and disclosure of the invention. This serves a two fold purpose, viz. firstly, the exclusive rights ensure that people are motivated to come up with more and more inventions, and secondly, public good is achieved as the people can enjoy the benefits of the latest technology.
Today, patents have become a very important tool in achieving business advantage. If a company has a patent over an invention then there is a clear cut advantage as they can maintain exclusivity for a period of 20 years from the date of filing of the patent application. The more the number of patents in a company’s portfolio the stronger and more valuable the company is supposed to be. In addition to the number of patents, quality of patents also matters a lot. It is advisable to approach an experienced and quality patent firm/agent in order to seek help and guidance on drafting, filing and prosecuting patent applications.
Patent Filing
The process of acquiring a patent in India starts with the filing of the patent application. An application for a patent can be filed by any person who is either the:
- True and first inventor of the invention;
- Assignee; or
- Legal representative of the inventor or assignee.
An application for a patent has to be filed at one of the four patent offices according to the jurisdiction of the applicant. The four patent offices are Kolkata Patent Office, Delhi Patent Office, Mumbai Patent Office and Chennai Patent Office with Kolkata being the head office.
Provisional and Complete Specification
An application for a grant of patent may be filed along with either a provisional or complete specification:
- Provisional Specification – A Provisional specification is generally filed then the invention has been conceived but more work needs to be done on the invention to perfect it.
- Complete Specification – A complete specification is filed when the invention has taken the final shape and is ready to be filed in a complete manner.
If provisional application is filed, the patent law provides the applicant a time of 12 months to perfect his/her invention and file the complete application.
Forms to be filed
In addition to the filing of the patent specification in Form 2, certain other details are required under the patent law which has to be provided along with the patent specification. These are:
Form 3 –Information and undertaking regarding foreign applications
Form 5 - Declaration as to inventorship by the applicant
Form 26 - Authorization of patent agent or any other person. (if filed through a patent agent).
Publication of a patent application in India
Once all the aforementioned details have been provided, the application will ordinarily be published within18 months in the official gazette. However, the same may be expedited if a request for early publication is requested by the patent applicant. Once published the application is available for public inspection and any person may file an opposition to its grant. The advantage of publication to the applicant is that the rights of the patent applicant start from publication, however, they are not enforceable till the patent receives grant.
It should also be noted that there are certain situations under which a patent may be prevented from being published in the gazette. These include situations such as:
- Non filing of the complete specification within 12 months from the date of filing the complete specification.
- Issuance of secrecy direction, or
- Withdrawal of application by the applicant.
Examination of a patent application
An application for patent is examined only after a request for examination has been made by the applicant. Such request should be made within 48 months from the date of filing of the application or priority. Once the request for examination has been made, the application will be examined by the patent office to verify the correctness of all documents and also to verify the patentability of the invention. After performing the examination checks, the patent office generally issues an examination report which is known as the First Examination Report (FER). The patent act also mandates a time period of 12 months from the date of issuance of the FER to put the application in order for grant by complying with the objections raised by the patent office.
Grant of a patent in India
Once all the objections have been satisfied and the requisite fee has been paid, the application is granted. Once the patent is granted, it is again published in the official gazette. Any person interested in filing for opposition to the grant of patent can do so within one year period from the grant of the patent by way of a post grant opposition.
Another point to note is that the patent rights which start from the date of publication are now enforceable.
Patent Term
Any patent which is granted will be valid for a maximum term of 20 years from the date of filing or priority, whichever is earlier. However, to keep the patent active for the said 20 years, the patent should be renewed every year.
Indian Patent Process – Flow Diagram
Who can file for a patent in India?
An application for a patent may be filed in India by any of the following persons
- True and first inventor of the invention;
- Assignee of the true and first inventor; or
- Legal representative of any deceased person who immediately before his death was entitled to make such an application.
A patent application by any person from another country may be filed if the country is a member of the Paris Convention or is among the list of convention countries under the Indian Patent Act.
The Indian Patent Office (http://www.patentoffice.nic.in/) headed by Controller General of Patents, Designs, and Trade Marks is the patent granting authority in India. The office has been established under the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion.
There are four patent offices in India. The patent offices are located at Mumbai, Chennai, New Delhi and Kolkata. An applicant will have to pick an appropriate office for filing a patent application based on the territorial jurisdiction of the patent offices. Territorial jurisdiction of each of the patent offices is provided below, and the same can be found at http://ipindia.gov.in/ipr/patent/patents.htm
Territorial Jurisdiction
Mumbai
The States of Maharashtra, Gujarat, Madhya Pradesh, Goa and Chhattisgarh and the Union Territories of Daman and Diu & Dadra and Nagar Haveli
Chennai
The States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and the Union Territories of Pondicherry and Lakshadweep
New Delhi
The States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar Pradesh, Uttaranchal, Delhi and the Union Territory of Chandigarh
Kolkata
The rest of India
A patent application in India can be filed at the Indian Patent Office Kolkata or at its Branch offices in New Delhi, Mumbai and Chennai. The appropriate office for an applicant to file a patent application would depend on
- Where the applicant resides or has his domicile or has a place of business or
- The place from where the invention actually originated.
In case of an International applicant not having a domicile or residence in India, a patent application must be filed through a patent agent. The appropriate patent office in such a case would depend on the address of service provided by the applicant.
Posted in: FAQ-PATENTS
