7:39 PM

ARTICLE
9O00 «
The following criteria determine what can be
patented in India:

1. Patentable subject matter:

The foremost consideration is to determine
whether the invention relates to a patentable
subject-matter. Sections 3 and 4 of the Patents
Act list out non-patentable subject matter. As long
as the invention does not fall under any provision
of Sections 3 or 4, it means it has patentable
subject matter (subject to the satisfaction of the
other criteria).

2. Novelty:
Novelty is an important criterion in determining
patentability of an invention. novelty or new
invention is defined under Section 2() of the
Patents Act as "any invention or technology which
has not been anticipated by publication in any
document or used in the country or elsewhere in
the world before the date of filing of patent
application with complete specification, i.e., the
subject matter has not fallen in public domain or
that it does not form part of the state of the art".

Simply put, the novelty requirement basically

states that an invention should never have beeen
published in the public domain. It must be new
with no same or similar prior arts.

3. Inventive step or Non-Obviousness:

7:39 PM ll l
ARTICLE

Simply put, the novelty requirement basically

states that an invention should never have been
published in the public domain. It must be new
with no same or similar prior arts.

3. Inventive step or Non-Obviousness:

Inventive step is defined under Section 2(ja) of the
Patents Act as "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 a person skilled in the art". This
means that the invention must not be obvious to
a person skilled in the same field as the invention
relates to. It must be inventive and not obvious to
a person skilled in the same field.

4. Capable of Industrial Application:

Industrial applicability is defined under Section
2(ac) of the Patents Act as "the invention is
capable of being made or used in an industry".
This essentially means that the invention cannot
exist in abstract. It must be capable of being
applied in any industry, which means that the
invention must have practical utility in order to be
patentable.

These are the statutory criterion for the

patentability of an invention. Apart from this,
another important criterion for getting a patent is
disclosure of an enabling patent. An enabling
7:39 PM

ARTICLE

4. Capable of Industrial Application:

Industrial applicability is defined under Section
2(ac) of the Patents Act as "the invention is
capable of being made or used in an industry".
This essentially means that the invention cannot
exist in abstract. It must be capable of being
applied in any industry, which means that the
invention must have practical utility in order to be
patentable.
These are the statutory criterion for the
patentability of an invention. Apart from this,
another important criterion for getting a
patent is
disclosure of an enabling patent. An
enabling
patent disclosure means a
patent draft
specification must disclose the invention
sufficiently, so as to enable a person skilled in the
same field the invention relates to, to
as
carry out
the invention without undue effort. If the
patent
specification does not disclose an enabling patent
then a patent will most
definitely
not be granted.
A frivolous invention or the one contrary to
established natural laws is not patentable. A
perpetual motion machine or a machine that gives
more than 100% performance cannot be patented
according to this clause. An invention whose
commercial exploitation is contrary to public order
and morality or which causes serious prejudice to
human, animal, plant, or the environment is not
patentable. Thus, a device for housebreaking or a
gambling machine cannot be granted a patent. An
application that helps one hacking to email accounts
of others can also not be patented. A terminator
gene technology cannot be patented as it poses a
severe threat to the animal and plant life as well as to
the environment. Only genetically modified micro-
organisms that do not fall under section 3 (b) are
patentable.

The mere discovery of a scientific principle or the

formulation of an abstract theory or discovery of
any living thing or non-living substance occurring
in nature is not patentable. This means the
discovery of an existing phenomenon like natural gas,
or an element cannot be patented. It is for the simple
reason that the discovery of the phenomeno he
+ h a a n ic p o t
santi nait
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7:41 PM

The mere discovery of a scientific principle or the

formulation of an abstract theory or discovery of
any living thing or non-living substance occurring
in nature is not patentable. This means the
discovery of an existing phenomenon like natural gas,
or an element cannot be patented. It is for the simple
reason that the discovery of the phenomenon or the
theory is not an invention i.e., neither a new process
nor a new product but a mere finding.

Similarly, the mere discovery of any new form of a

known substance which does not result in the
enhancement of the known efficacy of that
substance or mere discovery of any new property
or new use for a known substance or of the mere
use of a known process, machine or apparatus
unless such process results in a new product or
employs at least one new reactant cannot be
patented. The crystalline forms of a known
substance cannot be filed for a patent grant under
this exclusion.

New uses of the plant neem cannot be patented as

per this clause. However, salts, esters, ethers,
polymorphs, metabolites, pure forms, partic

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7:42 PM

Step 1:Conceiving your Invention

This is the first step for an inventor who
wants to go ahead with his or her
invention. It is important to collect as
much information as possible. Some of the
pertinent questions that the inventor
must think through are: what is the field
of the invention, what are the advantages,
how will it help in improving already
existing solutions? Not all inventions are
patentable subject matter. Section 3 of the
Patents Act provides those subject matter
which are not patentable. Therefore, while
conceiving, the inventor must be clear that
the invention does not fall under any of
such categories which are not patentabla
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O
Step 2:Patent Searchand Drafting
 since
the inventor must do patentability search. This is important
a
After getting clarity over the invention, meet the novelty
is novel or not. All inventions must
it will help in understanding whet her the invention
examined upon conducting an extensive
criteria under the Patents Act. The patentability opinion can be
The patentability search identifies the closest possible prior
search and forming a patentability 1eport. about the
the results obtained an opinion
to the public) relating to the invention and based on
arts (knowm neutral. Nevertheless, or
provided which can be positive, negative,
patentability of that invention may be search is highly recommended.
one can choose to directly
file the application, but a patentability

The application consists of

The next step which follows is
effective drafting of the patent application. and Summary. All such
Description, Drawing (lif any), Abstract,
various parts such as Claims, Background, It is advised that utmost
effective disclosure of the invention.
parts must be carefully drafted to provide
the application.
care and precision must be taken while drafting

Step3-Filing the Patent Application

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A T this can be filed in the

This is where the actual process
starts. After drafting the patent application,
form in Form1. receipt A would be generated with the
government patent office per the application
as
is at an
application, in case; the invention
number. One can also file a provisional patent
patent application secure a prior date of
Form 2. The benefit of filing a provisional
application is that one can
early stage under In the
file the complete specification.
world. Also, one gets 12 mont hs to
fling which is crucial in the patent
Form 28 must be used to file for patents.
case of start-ups and
small entities, the application form in

Step4-Publication ofthe Application

18 months from the date of filing
the application is published after
After fling the complete speciication, In case, the applicant does
from the applicant for publication.
There is need for any special requirement
no
can be made along with
not want to wait till the expiry
of l18 mont hs, an early publication request
wit hin one month from the
9. the patent application is pub lished
prescribed fees by filing Form Generally,
request of early publication.
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Rule 24A- A request for publication under sub-section (2) of section 1 A shall be made in Form 9. After
publication, any person may oppose the grant of a patent by way of the pre- grant opposition. Section 25(1) of
the Patents Act 1970 states that where an application for a patent has been pub lished but a patent has not
been granted, any person may, in writing represent by way of opposition to the Controller against the grant
ofa patent on the grounds stated in Sections 250)a) to (k This is known as pre-grant opposition. The
controller can decide on the merits and can notify the applicant regarding the opposition, after which the
applicant needs to submit his or her reply, and a subsequent decision can be taken thereof.

Step5-Request for Examination

Unlike the pub lication, the examination is not an automatic process and the applicant is required to
request the patent office to examine the patent application. The normal request must be filed wit hin 48
months from the date of filing of an application, under Form 18. Upon such request, the controller gives the
application to a patent examiner who examines it with different patentability criteria, which are novelty
non-obviousness or inventive step, and capab le of industrial applicability thereby, providing the applicant
with the Fitst Examination Report (FER) The applicant can also file a request for expedited examination of
the application under Form 18A. Rule 24C- An applicant may file a request for expedited examination in
Form 18A along with the fee as speciñed in the first schedule only by electronic transmission duly
authenticated within the period prescribed in rule 24B on any of the following grounds, namely:(a) that
India has been indicated as the competent International Searching Authority or elected as an International
Preliminary Examining Authority in the corresponding international application; or (b) that the applicant
is a startup.

Step6-Respond to the Objections

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The applicant needs to respond to the objection received from the patent office by way ofí the First
Examination Report. The applicant is expected to file a written response to the objection raised in the
examination report. The applicant can prove the patentability of the invention and try negating the entire
objection being raised. Physical hearingor video coníerencing can also be requested, as the case may be,

Step7-Grant of Patent
After addressing all objections, the application would be placed for a grant once it is found to be meeting
patentabilityrequirements, and finally, the patent wilbe granted to the applicant. The grant of a paten
ic notifiad in tha natant in1urnal whichic nuhlichod frrom tima to tima

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 dllout l i d e r suD-sect1Ol [Z) OL SectioLL LLA ldu De l l d u e u
leque
publication, any person may oppose the grant of a patent by way of the pre-grant opposition. Section 25(1) of
the Patents Act 1970 states that where an application for a patent has been published but a patent has not
been granted, any person may, in writing represent by way of opposition to the Controller against the gtant
of a patent on the grounds stated in Sections 25(a) to (k). This is known as pre-grant opposition. The
controller can decide on the merits and can notify the applicant regarding the opposition, after which the
applicant needs to submit his or her reply, and a subsequent decision can be taken thereof.

Step5- Request for Examination

Unlike the publication, the examination is not an automatic process and the applicant is required to
request the patent office to examine the patent application. The normal request must be filed within 488
months from the date of fling of an application, under Form 18. Upon such request, the controller gives the
application toa patent examiner who examines it with diferent patentability criteria, which are novelty
non-obviousness or inventive step, and capable of industrial applicability thereby, providing the applicant
with the First Examination Report (FER). The applicant can also fle a request for expedited examination of
the application under Form 18A. Rule 24C- An applicant may fle a request for expedited examination in
Form 18A along with the fee as specified in the first schedule only by electronic transmission duly
authenticated within the period prescribed in ule 24B on any of the following grounds, namely:(a) that
India has been indicated as the competent International Searching Authorty or elected as an International
Preliminary Examining Authority in the corresponding international application; or (b) that the applicant

is a startup.

Step6-Respond to the Objections

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office by way of the First

The applicant needs to respond to the objection received from the patent
to the objection raised in the
Examination Report. The applicant is expected to file a written response
invention and try negating the entire
examination report. The applicant canprove the patentability of the
as the case may be.
objection being raised. Physical hearing or video conferencing can also be requested,

Step7-Grant of Patent
for
grant once it is found to be meeting all
addressing all objections, the application would be placed
a
After
granted the applicant. The grant of patent
a
the patent will be to
patentability requirements, and finaly,
time to time.
is notified in the patent journal which is published from

of
within 12 mont hs from the date of publication
Any person interested may file post-grant opposition
a
Patents Act
of opposition to the controller. Section 2512) of the
the grant of patents, by providing a notice
but before the expiry of a period of one year from
the
1970 states that at any time after the grant of patent,
interested may give notice of opposition to the
date of publication of the grant of a patent, any person
stated in Sections 25(2)(a) to (k)
Controller in the prescribed manner on any of the following grounds

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Advocates and IPAttorneys, a leading IP and ON API

(The writer is an Associate with Khurana & Khurana

across countries)
Commercial law firm in India with presence internationally
that of the writer. The facts and opinions
column are
(Disclaimer: The opinions expressed in this
expressed here do not reflect the views of www.economictimes.com.)
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7:44 PM

Patent Flowchart India..

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Ordinary Application Patent Application

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a)Ordinary Patent Application Online Filing of
An ordinary patent application is filed with the India Patent Office without claiming priority Patents

from any application or without reference to any other application under process . The Patent FAQ

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Application Online Filing of

Phase
National
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Patent Application claiming
priority
a) Ordinary the India
Patent
Office
without

is filed with Ihe Patent FAQ

proces
.

application under
ordinary patent application
An to any
other
reference Patent & Technologies
or without
application Application.
from any Complete
or as a
Provisional
Application

application can
be filed as Patent Fee Cost

Patent Application
Calculator India

and Complete has to file

the
b) Provisional application
then the applicant
Patenting
wars in
is a provisional

In case the ordinary

application
Office within
12 m o n t h s
from the date of his smartphone
with the
Indian Patent provisional
specifications Act. the TechnologY
complete Patents
the Indian
9 of
section
As per with the
application. is not filed Patents in Automobile
provisional specification
abandoned if complete
deemed to be application.
is Industry
specification
filing of the provisional
months from the date of
within twelve
Patent Office atents in FMCG

Convention Patent
Application Patents in Home
c) from a similar patent
application(s) filed in one

claiming priority utomation

An application filed in India, application. The
convention
convention
is called a
convention countries,
of the earliest priority PATENTS
or more
the date of
12 months from
within
filed BIOMEDICAL
application is required to be earliest priority
from the date of
12 months HEALTHCARE
within
to be filed
required
application.

PATENTS IN
application. 1ECHANICAL

National Phase Entry

In India
PCT Application NGINEERING
d) an
international filing date in
which the applicant gets
filing system in
PCT is an
international
the date of ATENTS IN
time limit of 30/31 months from
countries. The applicant has a AVIATION INDUSTRY

all the designated countries. PCT

in the designated
National Phase Entry Application
priority to file PATENTS IN
earliest
31 m o n t h s from the
application designation
India can be filed within ELECTRONICS
National Phase Patent
INDUSTRY
date of the earliest priority.

From Filing Till Grant

Patent Application Stages

The stages of a patent from Filing till Grant are:

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Publication of Patent Application in India: May 10. 2022
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of filing or India
months after the date
filed, it is published 18
Once the application for patent is Import of
infringement
But for the right to initiate
(whichever is earlier). Cosmetics into
the date of priority.
and from the India
rights to the applicant
on
Act provides similar
proceedings, the Indian Patent
that provided to the Patentee.
date of publication of application, as
April 26, 2022

Examination of Patent Applicatlon in India:

O A C t o n to
the application for patent is not
so
India follows deferred examination system according Recover EMI

Patent office to initiate

for examination is filed with the for Stuck
examined unless a request
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examination proceedings. To initiate the examination proceedings the applicant is required
to file a request with the Patent Office. If the examination report is adverse to the grant o

April 26. 2022

Patent, the same is communicated to the applicant.
As per the provisions of the Patent Act

imposed on him within a period of one

the applicant has to comply with the requirements
is
on which objections are forwarded to him, or else the application
year from the date

deemed to be abandoned by the Patent Office. Recent

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Grant of Patent Application In India:

When the application for Patent is found in order of grant. the patent is granted as
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Term of Patent in India: designating8

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A patent is granted for a period of twenty years from the date of application or priority date,
April 28. 2022
whichever is earlier.

Patent Renewal/ Patent Annuity Payment Action Taken

Report on.
Patent Annuity fee is payable every year to keep the patent in force for the patent term.
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7:45 PM

PATENTS5
TRADEMARKS
COPYRIGHT

INTELACUTAL GEOGRAPHICAL
PROPERTY (IP) INDICATION

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Rights provided to the author
with the software copyright
The intellectual property rights granted under
the software copyright include:

.The right to store the work in any electric

method or even reproduce the work.
.Right of issuing copies of the work to the

public.
.Right of displaying the software.
.
Translation of the work in any format.
.Creation of adaptation of the work.
.Selling or renting the work for the required
purposes.

In case a group of individuals creates the

software, the government grants all these
rights to all of them.

COPYRIGHT YOUR WORK RIGHT

NOW
7:46 PM

X https://vakilsearch-co...
From vakilsearch.com delivere

Registration procedure for

the copyright of software
For all those software enthusiasts and
masterminds worried about protecting their
original works, you need not worry. You can do
the copyright registration for the software
under the Copyright Act, 1957. However, as it
is a little bit complicated and a time-consuming
process, it's always good to have legal
guidance. We at Vakilsearch hold immense
knowledge and expertise in getting for the
software licenses. Why not have a look at the
government procedure of Copyright
registration for Software

Applying: Submit the application for the

software. Along with the application, it is
mandatory to provide the 'Source Code'. The
source code remains confidential always.
While the authorities make the object code

public.
7:46 PM l &.l
source code remains confidential always.
While the authorities make the object code

public.

Diary number

After the filing of the application, they publish

the source code in the diary.

30 days

For 30 days, the authorities make the code

visible to the public. In case, no one opposes or
makes objections, then the procedure
continues. However, if any person objects, then
the author has to face copyright hearing.

Examination of the application

If accepted, the examiner checks the

application for errors. In case of any
discrepancies, they send a Letter of
Discrepancy to the author. However, if there
are no errors, the application is passed.

Registration approval
The ultimate step is getting approval from the
7:46 PM

Registration approval
The ultimate step is getting approval from the
registrar. They can either accept or decline the
application. In case the registrar declines the
application, then you need to carry out the
whole procedure again. However, if accepted,
you will get a notification from the authorities.
Moreover, they provide the copyright notice on
the copies of the work through the ©
(copyright) symbol.

Documents required for

software copyright
registration
You need to submit the following documents
for the software copyright registration:

.Proof of name
Nationality proof of the applicant
Work description
Address proof
.Copies ofthe work submitted
The publication date for work
7:50 PM

What is the Purpose of a

Trademark?
a trademark is to prevent
The main purpose of
that use
unfair competition between companies
more business. For
c o n s u m e r confusion to get

diner useda golden,

example, if an independent
arched "M" as its logo, it could confusse

customers who think the establishment is a

confusion is
McDonald's. Causing this type of
against trademark law.

The purpose of trademark lavw is twofold:

A trademark helps customers distinguish

between products
A trademark protects the owner's

investment and reputation

In the 1995 case of Qualitex Co. v. Jacobson

Products Co., the Supreme Court described
trademark law as "preventing others from
copying a source-identifying mark" and
assisting the customer in making purchasing
decisions. The law also helps make sure the
Need legal help with a Trademark Registration?

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financial rewards associated with its product.

It's important to remember that having a

registered trademark doesn't give you blanket

rights to that particular name. For example,
"Delta" is both a sink manufacturer and airline,
among a few other businesses, and yet nobody

confuses them. There is enough distinction

between the products and services that no
customer would confuse Delta sinks with Delta

flights.
If the USPTO doesn't believe a customer can
confuse your trademark with someone else's,

your registration will be allowed to mature.

However, the USPTO has a 30-day period in
which it posts a "Notice of Publication," allowing
anyone to challenge the trademark application.

Certain applicants are required to file what's

called a "'specimen of use," which is an example
of your trademark being used in the real world.
If your application fails to include all

requirements, including a specimen of use when

requested, it will be returned along with a filing
fee refund.

Why is a Trademark
7:52 PM

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What is the law related to design.

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As per Indian designs law, a "design" is

defined as "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 ..

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