Are Your Thoughts An Intellectual Property That You Should Consider Patenting It: Let’s Find Out

KEY TAKEAWAY

• Intellectual property rights provide legal rights to the creator or an inventor over the use of their creation
• Patent Act was Amended in India in 2005 and is extended to all fields of technology such as food, drugs, chemicals and micro-organisms.
• There was an introduction of provision for enabling grant of compulsory license along with the provisions relating to pre-grant and post-grant opposition for the same.
• Patent law is for new inventions of products and processes for improvement of mankind

INTRODUCTION

In times like today, the world is connected through the means of technology which is known for its magnificent ability to concise the whole world around an individual through a flat screen just a fingertip away. While we may be in charge of how to use this profonde power of technology for the benefit of oneself there are several possible ways to misuse them too. While this led to new improved lifestyle and a means to generate economy across countries. "Intellectual Capital" has today become one of the key wealth drivers in the international trade giving rise to Intellectual property rights to safeguard. Intellectual property rights (IPR) protect the intangible goods of man, such that are created by the mind giving the creator that invented such unique idea the exclusive rights to use its creation as per his will. It attempts to balance the interest of the creator and public interest while encouraging a healthy atmosphere for more inventions. IPR is vast in its nature as there is constant emergence of new developments across globe, the major sectors within IPR are Copyrights, Patents, Trademark sand Geographical indication.

BACKGROUND

During the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1986–1994 negotiations wee being held for an international legal agreement between all the member nations of the World Trade Organization (WTO).The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into existence and as a signatory India was under the obligation to amend the Patents Act on 26th march 1999.The word patent originates from the Latin word patere, which means "to lay open" which means to make it available for public inspection. Patent usually refers to the IP rights where in assures protection for new inventions, innovation and non-obvious products in nature that could act as a potential problem-solving technology in some areas, that the owner could use or sell legally for a set time period by enabling public disclosure of the invention which is crucial part to patent. Further India made some progressive amendments into the patents act to make it more modernised and flexible to use as a member of TRIPS as a result we now have the Patent Amendment Act, 2005 fully in force and operative.

FURTHER DETAILS

Do you feel proud of yourself for coming up with an exceptional idea and want to claim it as yours through means of IPR? However, that isn’t how the system functions as IPR is to protect the intellectual property of people it doesn’t protect a mere idea as it doesn’t fit into its’s framework. Copyright protects the artsy expression or creativity, while patent rights protect the actual invention. Therefore, while one is exploring their creative aspect they must dig in deeper and find a tool to turn that idea into an invention which can be protected by the law. Patent system in India is administered by the Controller General of Patents, Designs, Trademarks and Geographical Indications as each office has its own territorial jurisdiction for receiving patent applications and is empowered to deal with all sections of Patent Act.The patent registration wouldgrand the rightful owner the protection for his invention under the Act, by the right to exclude others from using the invention for a limited period of time wi
thout his permission or will. As that assures the right to manufacture, use, offer for sale, sell or import the invention for the prescribed period.

The monopoly over patented right can be exercised by the owner for a period of 20 years after which it is open to exploitation by others according to the new amended act 2005. One has to payrenewal fee annually to keep the patent in force or can try restoration of patentif applied within 18 months from the date of lapse. An important element about the patent is that its infringement is not secured by the state and therefore its once’s duty to detect such act against their patent and use their rights to protect from third party challenges. Patent protects the inventor from losing his rights from the creation that he invested these lifelong efforts to bring it into reality, under Section 2(1)(j) of the Patent Act, 2005, defines the "invention" as a replacement product or as process involving an ingenious step and capable of commercial application.

The landmark case of Calcutta High Court on the process of production of Bursitis virus containing vaccine (Dimminaco AG vs Controller of Patents, 2002) revolutionised as now the definition of invention is now mindfully used keeping intact “industrial application” within the definition which in simple terms mean an invention made for industrial use. The Act careful defines further "New invention" is defined under section 2(1)(l) of the Patents Act as "New invention" means any invention or technology which has not been anticipated by publication in any document or utilized in the country or elsewhere within the world before the date of filing of application with complete specification, i.e., the topic matter has not fallen in public domain or that it does not form part of the state of the art. The act specifies the absolute novelty concept where such an invention which don’t exist or have been used in any part of the world shall be patent e.g., a person uses his own invention before it filles for the patent application the invention shall not be deemed with absolute novelty status, in case of relative novelty the requirement is such that the invention may not be used wherein the patent is being issued elsewhere is fine.

KEY ELEMENTS TO GRANT PATENT APPROVAL

Following are the requirements for grant Patent approval

• Any individual from the land or outside boarders or even a company / government can file for patent rights against their invention at the Indian patent office by filling the patent application
• The entity applying must be the first to invent that intention or can be joint application for the rights
• The application must disclose the performance of the invention knowing that this information shall be confidential and protected
• The invention that is submitted for approval must be- new containing inventive step and capable of industrial application.
• A patent application can be made for a single invention only.
• While filling for the patent application one must follow the guidelines of the Patent Cooperation Treaty (PCT) which is an international patent law treaty and was recently updated (1st July 2019) with new amendments, that establishes the filling date of the contract across globe. As there isn’t such a thing as “international patent” and once approval of it depends on each state, region they apply to.
• Every application is ordinarily published after the expiry of 18 months period form the date of filing of the application or the date of priority of the application whichever is earlier.
• Applications for patent under section 5(2) relating to pharmaceuticals and agrochemicals have protection from the date of grant of patent and not from the date of publication of the invention.
• The invention shouldn’t come under the inventions which are not patentable under Section 3 and 4 of the Patent Act, 1970

Section 3 of the Act also defines inventions that cannot be patented such as mere discovery of a new form of an already existing substance that doesn’t result in an enhancement or upgraded version of itself cannot be stated to be an invention, or an arrangement or re arrangement of known devices to function at all cannot be either known as invention as devices were already invented for a purpose, they serve therefore not patentable material. Even plants and animals or a microorganism, seed are part of the eco system and so are their clones and whatever new variety that exist therefore cannot be patented, however the process of performing the procedure can be subject to patent Lastly anything that could cause exploitation of these living beings and their morality is also dismissible for patent application.

CONCLUSION

IPR is to encourage new programs and invention and rightful protect them from being misused and to have a lifestyle for people that’s easy and full of new innovation and technology, therefore there are constant efforts by the law to improve the IPR domain and uplift it for the ease of the creator and make the process smooth and manageable making sure it’s not being mishandled. This has also turned itself into a business opportunity as the field of IPR is constantly excelling which has a considerable amount of rise within the patent filings too. Everyone is a part of this race and want to be the best in this as this field is the future as it is so heavily dominated by technology. Technology makes life easy and especially during a global pandemic it has truly come handy and is what’s running the economy for many counties while being so cost efficient and keeping us all connected