How to patent an invention

1) What is an invention?

An invention means a new product or process involving an inventive step and capable of industrial application.

2) What is a patent?

The Indian Patents Act 1970 defines a patent as a grant or right to exclude others from making, using or selling one's invention and includes the right to license others to make, use or sell it.

3) What cannot be considered as inventions?

Laws of nature

Physical phenomena

Abstract ideas

Literary, dramatic, musical, and artistic works (these can be Copyright protected.

Inventions which are:

a) Not useful (such as perpetual motion machines); or

b) Offensive to public morality

4) What are the stages of a successful invention?

a) Identifying a problem that needs to be solved.

b) Inventing a solution for that problem, which should work.

c) Developing a prototype or being able to demonstrate the invention to show its working.

d) Filing a patent application to protect the invention so that it can be disclosed to other people.

e) Arranging the manufacturing and marketing (production) of the invention either through one's own company or through licensing.

f) Each stage requires its own particular expertise and resources. It is essential that the early stages are satisfactorily completed before moving on.

5) What is the process of patenting an invention?

The process of patenting an invention-

Applying for a patent-

1. File a preliminary application

2. Recording the priority date (The date on which the application is recorded)

Noting the Patent specifications-

1. A patent specification is written in a certain format, which may not be immediately obvious to the casual reader.

2. The specification should contain a preamble, which describes the background to the invention.

3. Then you will have to write a statement of invention, which is a legal statement of the scope of the monopoly sought.

4. After this you will have to give a detailed description of the invention which may include drawings and examples.

5. The last step in patent specification is specifying the claims where the patent maker ‘claims’ a territory of technology within which other people cannot stray without infringing the patent.

Eg: Introducing a new type of flavor has a very broad scope where as improving a flavor has comparatively lesser scope in relation to patenting.

Examination of the patent by the examiners

     The examiners look through the previous patent specifications and other literature in  order to ascertain the nobility of the invention.

They also see to the ‘inventiveness’ in comparison to the prior art.

The examiner will then correspond with the patent agent if he is satisfied that the claims are permit able.

Prosecution : the stage of patenting the procedure

The specification filed by the applicant is usually published after 18 months, after the date of priority.

The Patent Office will also publish a list of previous patents, which were found to be of relevance in the patent search so that even if an inventor has not disclosed the invention in any way up to this point, the patent system itself will make a disclosure and destroy its novelty at this time.

Documents required for filing a patent form

1. Application Form (form 1)

2. Specification (Provisional/Complete) [Form 2]

3. Drawings (if any)

4. Undertaking under section 8 (form 3)

5. Power of Authority (if the patent application is filed through a patent attorney) 

Patenting of traditional knowledge

Traditional knowledge is the knowledge that is continually developed, acquired, used, practiced, transmitted and sustained by the communities/individuals through generations.

In India traditional knowledge including the existing oral knowledge cannot be protected under the provisions of the existing IPR laws/acts. Until and unless there is a substantial improvement in the existing traditional knowledge and if it can fulfill the requirements of the definition of the invention, then the patent application can be filed. Example of such traditional knowledge is Ayurveda medicine.

Article prepared by Anisha Susan Baby

Impact of patent system on traditional knowledge

India in the twenty first century may face many challenges in protecting intellectual property rights in the on test of the Trade Related Intellectual Property Rights (TRIPs) Agreement under the WTO.  The most complex and socially sensitive task is the issue if granting patents to inventions based on the traditional knowledge of India origin.  Under the TRIPs Agreement, by the turn of the century, India is bound to protect inventions both product and process emerging from all over the world based on existing traditional knowledge that were hitherto not commercially exploited in the global market.  It is the technological break through in the field of molecular biotechnology that enable the corporate houses to entire into the market with new products based on traditional knowledge.

The laws relating to intellectual property protection particularly patent law has been used to afford protection to the investments made in this regard.  This turn led to the race by the scientific community particularly from the corporate R and D units for identifying and collecting materials and information from the existing products based on traditional knowledge.  The result is the illegal transfer of the knowledge base from the communities i the developing countries to the corporate houses of the developed countries for scientific analysis and creation of new products for exploitation.  It is the lack of technological capabilities, scarcity of capital, political inertia etc., existing in the developing countries that seem responsible for the erosion of this knowledge base.  The opening up of the markets of these developing countries through the process of globalization enable the corporate houses to sell these new products for huge profit and in some cases substantially affecting the production and sale of the existing products based on traditional knowledge.  The new result is not only the destruction of the traditional knowledge base but also the creation of a perpetual technological dependence.  The challenges India face in this context are on the one hand to prevent the illegal transfer of the traditional knowledge base and on the other to develop appropriate measures including technological and industrial capabilities exploit these resources for creating new products for global market. The attempt in this paper is to find out whether the TRIPs based patent registration system will enable us to overcome these challenges.  It is proposed to examine whether patent law is the appropriate legal frame work to prevent the illegal use of traditional knowledge and also to examine the consequences of patenting the new product based on traditional knowledge.

Patenting of Traditional Knowledge

Traditional knowledge can be generally described as information existing in the society which has been bassed on by the previous generations. This include inter alia the information regarding the product, its use, the manner of use and the method or manner of its manufacture.  All these information were in use and majority are still being used by the member of the society.  The peculiar characteritics of this knowledge base is the inability to identify in many cases the original creator of the information.  In many cases the holder of the information in the previous occations must have modified it to suit the then existing requirements.  This information is available in almost all fields diversified and scattered over India with or without documentation.  For the purpose of examining the scope of patent protection it can be conveniently classified into the following four categories.

1 Information commonly known to the society with or without documentation and is in constant use by the people.  e.g the common use of neem, tulasi, turmeric etc.

2 Information that is well documented and is available to the public for examination and use,  eg, the ayurvedic texts information in the palm leaves etc.

3 Information that is not documented or commonly known by known only to small groups of people and not revealed to others outside the group eg - the tribal knowledge.

4 Informational known only to individual or members of the families and none else. eg. the information used by the village medical practitioner for treatment.

It is interesting to find out whether these information can be patented under the TRIPs based patent system.

The modern patent registration system presupposes three basic requirements for the purpose of an information to be patented. They are :

i The information must be a new and useful invention
ii It must have an inventor and
iii The details of the invention must be in the written form.

If we examine, can find some requirements vis-a vis patenting traditional knowledge
It is only an invention that is capable of being patented.  The idea is basically to include granting patent monopoly to discoveries particularly products and processes that are naturally occurring.  This is also to ensure that only inventions that are the product of inventive faculty of human being that are protected.  So from the very inception of the patent system, it is only new and useful invention that were permitted for the grant of patent. Of course the State had the power to exclude certain items from granting patent monopoly on the ground of public interest.  So there existed different standards in different countries regarding the grant of patents for inventions.  The TRIPs Agreement for the first time has consolidated the international norms for identifying the nature of the inventions that are patentable.

According to TRIPs Agreement inventions from all fields of technology are entitled for patent protection.  This include both invention of product and process.  To qualify for the grant of patent the invention must be a new novelty, involve inventive step and capable of industrial application.  It is also clear that the patent and enjoyment of patent right are available without discrimination of place of invention, field of technology and whether the products of invention of life forms, it is expressly stated that invention of micro organisms and non biological and micro biological process for the production of plants or animals must be granted patent protection.  Regarding the invention of plant varieties the Agreement allows the option of using a sui generis system for protection.  In this regard the Agreement expressly permit the exclusion of the invention of an animal, plant and essentially biological process for the production of plant or animal from patent protection.  But it is interesting of plant or animal from plant protection.  But it is interesting to note that this only a temporary agreement and this provision in subjected to mandatory review in 1999.  The granting of patent will be avoided in case of invention relating to diagnostic, therapeutic and surgical methods for the treatment of humans or animals.

If you wish to get guidelines on patent registration or Trademark Registration, contact our Intellectual Property Consultants. We have dedicated Intellectual property attorneys and IP consultants for you.

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