Questions of surprise test 2

1. What is the producer of registering patent? Does

unregistering of patent effects the rights of patentee.
2. Briefly explain the trade secrets.

Question no . 1
 What is the producer of registering patent? Does
unregistering of patent effects the rights of
patentee.

 What do you mean by patent?

A patent is a type of intellectual property that gives its owner the legal right
to exclude others from making, using, or selling an invention for a limited
period of years in exchange for publishing an enabling disclosure of the
invention. In most countries, patent rights fall under private law and the
patent holder must sue someone infringing the patent in order to enforce
their rights. In some industries patents are an essential form of competitive
advantage; in others they are irrelevant.

 Who may apply for patent?

Section of of patent act 1970,provides for the persons entitled to make
an application for a patent. Any person who is the first and true inventor of
an invention can apply for a patent in regards to that invention in the patent
office. However, such a right to make an application can be transferred in
favour of an assignee of the first and true inventor of the invention. In such
case, the application has to be accompanied by a proof of right to make an
application along with a declaration that the person so claiming is the first
and true inventor of the invention.  An application for a patent may also be
filed by a legal representative of a deceased person who was entitled to such
patent before his death. 
 What is the procedure for registering patent?

Persons entitled to apply for patents

—(1) Subject to the arrangements contained in section 134, an

application for a patent for an invention might be made by any of
the accompanying persons, in other words,— 

(a) By any individual professing to be the valid and first creator of

the invention; 

(b) By any individual being the assignee of the individual

professing to be the valid and first innovator in regard of the
privilege to make such an application; 

(c) By the legitimate agent of any deceased individual who is

preceding his demise and is qualified to make such an application. 

(2) An application under sub-section (1) might be made by any of

the persons alluded to in that either alone or mutually with some
other individual.

 Filing of Application- Provisional/Complete: The Patent

Application should be filed in form 1 accompanied by either
provisional or complete specification in form 2 (If an
applicant is not ready with the complete invention and need
some more time for it then filing for the provisional application
is recommended).  
 Publication of Application: The publication of the
application is made after the expiry of 18 months from the
priority date and no fees are required by the inventor. A prior-
 request for publication can be made (Rule 24A) under
section 11A(2) in form 9 (optional step).
 Request for Examination(REF): The request for examination to
examine the patent application is made in form 18 (including fee)
within 48 months from the filing date by the applicant.                              
 Examination issue of First Examination
Report(FER): The controller sends the patent application to
the examiner who checks for patentability as per the
patentability criteria and creates the first examination report
(FER). 
 Any objection raised regarding the patentability requirements
during examining the patent application has to have complied
within 12 months.                              
 Grant of Patent: Once the application meets all the
requirements of patentability, the patent is granted to the
inventor with the seal form patent office and is notified in the
journal from time to time.
 Opposition: Section 25 of the Act deals with the opposition to grant of
patents and are of two types: Pre Grant (before the patent is granted)
and Post Grant (after 1 year of grant of the patent). The opposition can be
filed by anyone interested in the field of the invention in form 7 with the
prescribed fee within 12 months from the date of publication of the patent.

 Grounds of Opposition to Patent

 Obtained wrongly or fraudulently.

 The invention has been already published and known.

 Not involved in any of the inventive step.

 Not completed within 12 months.

 No clear and explicit description of the invention.

 Not considered an invention based on the subject matters for

the invention.

 Documents Required For Patent Application

o Application for grant of the patent in form 1

 o Proof of right to file the application from the inventor. 

o Provisional/complete specification in form -2

o Statement and undertaking under section 8 in Form

3

o Declaration as to inventorship

o Power of authority in form 26

o Applicant’s signature and an appropriate date

o If application pertains to a biological

material obtained from India, submission of
the permission from the National Biodiversity
Authority

o Request for Examination- Form 18

o Requisite Statutory Fees

 Does unregistering effects the rights

of patentee.
Registering an invention as a patent isn’t a mandatory
thing. An unregistered patent is generally known as a
trade secret. Someone may choose to keep an
invention as a trade secret so as not to disclose details
of the invention to the public. However, not
registering the patent does not prevent competitors
from figuring out the invention on their own,
designing something similar, and registering it under
their own name.

The patent right is not an absolute right. It is a

fettered right and is subjected to certain specific
prescribed constraints. The Patents Act balances well
between individual rights of patentee and the interest
of general public. A patent does not grant absolute
monopoly. Along with giving protection to the right-
holder for his invention, the Act is also aware of the
interest of public; the main purpose of Act being
encouragement of the development of technology
and innovation.

The Patent Act provides protection to an inventor for

his invention, giving him exclusive right over the
invention and protection from infringement or
unauthorized use of the invention by others. Under
the Patents Act, government confers exclusive rights
on the Patentee, where the invention cannot be used
by others without the authorization of patentee.

Section 48 of the Indian Patents Act provides the

rights of patentee under the act. The section confers
upon the patentee the exclusive right to prevent third
parties from the act of making, using, selling or
importing that product in India if the subject matter of
the patent is a product. Similarly, if the subject matter
of the patent is a process, the patentee has the
exclusive right to prevent third parties from the act of
using the process for sale, selling the product
obtained directly by that process in India.

These rights of patentee are subject to certain

conditions specified in the Act. Section 47
provides certain conditions where exclusive rights
of patentee are limited by certain specific acts
 Conclusion
Patenting in India has protected the intellectual property of many
innovators and has been useful in the growth of commerce and
technology in India. One has to go through a certain process for the
grant of Patent. Grant of Patent confers monopolistic rights upon the
Patentee excluding the third party to sell, use, manufacture or import of
the patented product without the consent of the patentee. If someone
tries to use, sell, manufacture or import such patented products leading
to the infringement of the rights of the patentee, the patentee can sue the
person

Question no . 2
Briefly explain the trade secerts.
What is a trade secret?
Trade secrets are intellectual property (IP) rights on
confidential information which may be sold or licensed.
In general, to qualify as a trade secret, the information must be:

 commercially valuable because it is secret,

 be known only to a limited group of persons, and
 be subject to reasonable steps taken by the rightful holder of the information to
keep it secret, including the use of confidentiality agreements for business partners
and employees.
The unauthorized acquisition, use or disclosure of such secret information in a
manner contrary to honest commercial practices by others is regarded as an unfair
practice and a violation of the trade secret protection.

 What kind of information is protected by trade secrets?

In general, any confidential business information which provides an enterprise a

competitive edge and is unknown to others may be protected as a trade secret.
Trade secrets encompass both technical information, such as information
concerning manufacturing processes, pharmaceutical test data, designs and
drawings of computer programs, and commercial information, such as distribution
methods, list of suppliers and clients, and advertising strategies.
A trade secret may be also made up of a combination of elements, each of which
by itself is in the public domain, but where the combination, which is kept secret,
provides a competitive advantage.
Other examples of information that may be protected by trade secrets include
financial information, formulas and recipes and source codes
  What kind of protection does a trade secret offer?
Depending on the legal system, the legal protection of trade secrets forms part of the
general concept of protection against unfair competition or is based on specific
provisions or case law on the protection of confidential information.
While a final determination of whether trade secret protection is violated or not
depends on the circumstances of each individual case, in general, unfair practices in
respect of secret information include industrial or commercial espionage, breach
of contract and breach of confidence.
A trade secret owner, however, cannot stop others from using the same technical or
commercial information, if they acquired or developed such information
independently by themselves through their own R&D, reverse engineering or
marketing analysis, etc. Since trade secrets are not made public, unlike patents, they
do not provide “defensive” protection, as being prior art. For example, if a specific
process of producing Compound X has been protected by a trade secret, someone
else can obtain a patent or a utility model on the same invention, if the inventor
arrived at that invention independently.

What are Examples of Trade Secrets?

Many different types of information and processes can be considered trade secrets.
Some common examples of trade secrets are:

 Processes for converting raw materials into other usable materials

 Recipes for food or food products
 Methods of manufacturing consumer products
 Chemical formulas for cleaning products or other similar goods
 Technological processes, such as computer program processes or scripts?

Popular examples of trade secrets include the recipe for Coca-Cola and the formula
for WD-40. Trade secrets may also include items that a person or company has not
chosen to patent yet, such as a new plant hybrid or mechanical invention.

How Long Does Trade Secret Protection Last?

Unlike copyrights and other types of intellectual property, one does not register their
trade secrets with government agency. Instead, trade secret protection is typically
secured through means such as contracts, non-disclosure agreements, non-compete
forms, and other similar documents. These provide guidelines for people who are
exposed to information regarding the trade secret to prevent them from sharing that
information with anyone who may disseminate the information to the company’s
competitors. A contract or agreement designed to protect the trade secret generally
limits the person’s ability to share the information with others, which allows the trade
secret to remain a secret.

Thus, trade secret protection terms should be stated specifically in the contract
terms. Since there is no registration process for trade secrets, expiration of the
protection must be stated specifically in the written documents if there is any
expiration. Also, if the trade secret is released to the public or is no longer
considered to be confidential, the holder will usually lose protection and exclusive
rights to the secrets.

Trade secret misappropriation is a major legal issue and can lead to problems for
various parties to the agreement. Misappropriation or theft of a trade secret can also
lead to criminal consequences for the violating party. Thus, it is important that the
terms for confidentiality are clearly stated in all documents and that all parties
understand the terms.

Laws and treaties

International treaties
The Paris Convention for the Protection of Industrial Property (Paris
Convention) administered by WIPO deals partly with the protection of trade secrets
as does the World Trade Organization’s (WTO) Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement).
References
Intellectual property rights by D.R MK Bhandari(central law
publication 5th edition 2017)
Intellectual property rights by D.R Avatar singh(1st edituon
2013 eastern book company)
https://blog.ipleaders.in/patent-procedure-filing-
application/