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atents are exclusive rights given to a person in return for a full and complete disclosure of
the invention for which the patent is claimed. The exclusive rights are for a limited period
of time. The patent system aims at creating new inventions by providing economic
incentives. The possibility of gaining commercial benefit is believed to encourage inventors to
invent and investors to invest, which in turn promotes the progress of science and technology.
Patent Life Cycle
The objective of the Patent law is to ensure the progress of science and technology by providing
exclusive rights to inventors for a limited period of time. It operates on the principle of ‘Quid
Pro Quo’ or ‘Give and take’. An inventor gives an invention to the public and takes exclusive
rights over it for a limited period of time.
The grant of exclusive rights provides incentives to invent, invest, design around and disclose.
Possibilities of commercial benefits during the period of exclusive rights encourage inventors to
invent and investors to invest. Incentive to design around springs out of the efforts of
competitors to work around the technology, whose access is blocked due to existence of
patents. As complete disclosure of the invention is a prerequisite to the grant of a patent1
inventor is incentivized to disclose his invention to the public in order to get a patent. These
incentives operating together or individually promote the progress of science and technology.
The basic objective of the patent regime as seen in the life cycle is creation of new inventions
through economic incentives and enrichment of the public domain. By granting exclusive rights,
the patent regime provides the aforementioned incentives, which in turn promote progress of
science and technology by encouraging investment and invention through promise of financial
benefits during the exclusive period.
Most provisions under patent law are in one way or the other related to and affects the patent
The Patents Act, 1970, Section 9, Sub section (1)
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Requirements for a Patent
In order to get a patent, an invention must be:
ii. non obvious;
iii. useful; and
iv. must fall under the patentable subject matter
In India an invention in order to be patentable should be a product or a process and should not
fall under the list of exclusions.
The list of exclusions includes2
1. A frivolous invention
2. Anything obvious or contrary to well established natural laws.
E.g. A machine that can generate electricity without any source of energy
3. A mere discovery of a scientific principle
4. Formulation of an abstract theory
E.g. A method of transmitting material from one brain to another is an abstract theory. To be
patentable this theory has to be concretized with solid experimentation.
5. Discovery of any living thing or non-living substance occurring in nature
6. The mere arrangement or re-arrangement of known devices each functioning independently of
E.g. A clock and a transistor in a single cabinet
The Patents Act, 1970,Section 3
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7. A computer program per se other than its technical application to industry or a combination
E.g. Computer program for arranging numbers in an ascending order
8. An invention contrary to public order or morality
9. A method for cloning human beings
10. Invention which causes serious prejudice to human, animal or plant life or health or to the
E.g. A machine used for mercy killing is not patentable as it is against public morality.
11. The mere discovery of any new property or new use for a known substance
E.g. The new use of the asthma drug isoproterenol to prevent cataract is not patentable.
12. A mathematical method or a business method or algorithm.
E.g. A method of collecting rent from tenants is not patentable
13. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
including cinematographic works and television productions.
E.g. A book, painting, movie or music is not patentable.
14. A mere scheme or rule or method of performing mental act or method of playing games.
E.g. A method of teaching is not patentable.
15. A substance obtained by a mere admixture resulting only in the aggregation of the properties of
the components thereof or a process for producing such substance.
E.g. An admixture of sugar syrup and some common fruit essence to produce a soft drink is not
16. A method of agriculture or horticulture.
E.g. A method of grafting a rose plant is not patentable.
17. Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other
treatment of human beings or any process for a similar treatment of animals to render them
free of disease or to increase their economic value or that of their products.
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E.g. A method of performing a knee surgery is not patentable.
18. Plants and animals in whole or any part thereof other than micro- organisms but including
seeds, varieties and species and essentially biological processes for production or propagation of
plants and animals.
E.g. A human clone is not patentable.
19. A presentation of information.
20. Topography of integrated circuits.
21. An invention which, in effect, is traditional knowledge or which is an aggregation or duplication
of known properties of traditionally known component or components.
E.g. A concoction prepared from a plant called Arogyapacha to treat liver diseases is a
traditional knowledge among the Kani Tribals of Kerala and hence not patentable.
22. Invention relating to atomic energy not patentable3
The invention in order to be patentable must be novel. Novelty is seen in the light of the prior
art. An invention is said to be novel when it is not anticipated by any publication in any
document or used in the country or elsewhere in the world before the date of filling of the
patent application. The invention should not have fallen in the public domain or form part of
the state of the art. Therefore an invention will not be considered as novel if it forms part of the
Prior art means all information that has been published, presented or disclosed to the public as
to the state of the art in the relevant field.
Example: A pen which digitally indicates the amount of ink left in it. The prior art for this
invention would include a normal pen and a translucent pen. In the light of the prior art the pen
which digitally indicates the amount of ink left is novel because the same is not anticipated by a
normal pen or a translucent pen.
The Patents Act, 1970, Section 4
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To be patentable an invention should be non obvious i.e. it should not be obvious to a person
ordinarily skilled in the art. The test for determining non obviousness is that a person ordinarily
skilled in the art should not find the invention obvious after having gone through the prior art in
the relevant field. To be non-obvious the invention should have an inventive step.
Inventive step means that a feature of the invention has some technical advancement over the
existing knowledge in the relevant field or has some economic significance or both and due to
which it is non obvious to a person skilled in the art.
Example: A pen fitted with a flash light would be obvious in the light of prior art.
This invention would be obvious in light of existing art such as a pencil fitted with a flash light
and pens fitted with accessories.
Utility means that the invention should be capable of being made or used in an industry. It
means that the invention should be capable of being made, used at least in one field of activity
and be reproduced with the same characteristics as many times as required. For utility
commercial success or pecuniary success are irrelevant.
Example: A pen which digitally indicates the amount of ink left in it can be manufactured in an
industry and can be repeatedly manufactured. It is there useful.
Rights of a patentee4
The patent law gives a patentee the following rights:
Right to make: Patent law gives a patentee the exclusive right to manufacture the patented
Right to use: The patentee has the exclusive right to use the patented invention and to prevent
others from using it without his consent.
Right to offer for sale: The patentee has the right to prevent others from making the patented
invention available for sale without the consent of the patentee.
The Patents Act, 1970, Section 48
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Right to sell: The right to sell the patented invention lies with the patentee and he can prevent
others from selling it without his consent
Right to import the patented invention: The patentee can prevent others from importing the
patented invention into the country in which the patentee has the patent.
Patent rights are granted for twenty years and these twenty years are calculated from the date
. However in order to keep the patent alive renewal fees have to be paid at regular
intervals. The non payment of renewal fees may result in the lapse of a patent.
The process of acquiring a patent involves the following steps:
Filing: The patent process starts with the filing of a patent application. Patent applications are
filed in a standard format as provided by the patent law. Once an application is filed it is sent
: Generally within 18 months of filing of a patent application it is published in the
official gazette. Publication is a means of giving public notice that a patent application relating
to the relevant subject has been filed. It is a means of notifying any person who is interested in
opposing the patent application. Besides it forms a part of the prior art and could be used in
analyzing patentability of future patent applications.
: After publication the application is examined by a Patent Examiner. The
Examiner gives a first examination report in which objections if any to the patent application
The Patents Act, 1970, Section 53
The Patents Act, 1970, Section 7 , also sub clause (1),(2), (3)&(4)
The Patents Act, 1970, Section 11A
The Patents Act, 1970, Section 12
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are stated. The applicant has an option of amending his application or initiating proceedings
with Patent Office.
Grant: Once the patent application satisfies all the requirements of the patent law it will be
. A certificate of the grant will be given to the applicant and an entry as to grant will be
made in the Register of Patents.
: The option of opposition is open to any interested person either before the grant
of a patent but after publication or after grant of the patent. The patent law gives a set of
grounds for the opposition of patents.
The grounds for opposition include:
Wrongful obtainment of an invention from another person
Publication before priority date of the claim in the patent application
A patent application over the same invention has been filed before the applicant‘s patent
Public knowledge or public use of the invention in India
Obvious in the light of publication and use in India
Not an invention as per the Patent Act and is not patentable in India
Not enabled and the best mode is not described in the application.
Supplied false information to the Patent Office
Complete application not filed within 12 months of its first application in another country
Wrongfully described the biological source of origin
Anticipated by oral or any other form of knowledge available in local or any other indigenous
community (Traditional Knowledge)
The following flowchart shows the entire process of Patents in brief:
The Patents Act, 1970, Section 43(1) & (2)
The Patents Act, 1970, Section 25
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Suggested Further Reading
Indian Patent law basics
Patent Law Basics
Analyzing Patentability of Inventions
Patent filing requirements in India
Indian Patent Process
Indian Patent Application Process
DNA of patent search
If s and buts of patent application filing
Opposing grant of a patent
Patent Exhaustion in India
What do I do with my invention before speaking to Venture Capitalists?
Is method of massage a patentable subject matter?
To publish or not: Well, it depends!