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Follow UsThe Internet provides intellectual-property owners a seemingly unlimited market for their works. It also offers similar opportunities to those seeking to infringe the rights of others, while making the detection and elimination of such infringement extremely difficult. On the Net or otherwise, what should you know and do to protect your intellectual property–written words, trademarks, trade names, service marks, literary characters, images, music or sound? We answer some common questions that you have about patents.
What is a patent?
You can apply for a patent if you invent a new and useful device, design, or process. The patent will give you certain exclusive rights for your invention, including the right to make, use, and sell the invention and obvious extensions of it. You can also let others make use of your patented invention through a license agreement, which specifies what the licensee can do with the invention in exchange for a royalty paid to you.
| Is your patent being infringed? |
| When someone engages in activities that they are excluded from doing to the patented invention, they are said to have infringed the patent. A patent may be ‘literally’ infringed by a device or process that falls within the literal scope of one or more of the patents claims. If your patent is being infringed, you can file a civil action in a district court. In his defence, the defendant can claim that his invention does not infringe the patent, or that the patent itself is invalid. A successful patent infringement suit typically results in a permanent injunction prohibiting the defendant from engaging in any further acts of infringement. A successful plaintiff can also obtain monetary damages to compensate for the harm caused by infringement. |
How do patents help?
In the fast-paced world of computer technology, being the first to develop and patent an invention that meets an unsatisfied demand in the market, can give you significant leverage over competitors. Consider, for example, the effects of IBM’s decision to license the operating system for its PC from a small company named Microsoft.
How can you obtain a patent?
In India you can obtain a patent by filing a patent application with the Controller of Patents, pursuant to the Patent Act, 1970.
What invention can be patented?
To obtain a patent on an invention, the invention must be a patentable subject matter, novel, non-obvious and useful. Let’s look at each one of these.
Patentable. Patentable subject matter includes any ‘process, machine, article of manufacture, or composition of matter’. This is a very broad definition and can include computer hardware and software.
Not every idea can be patented. In particular, mere ideas or abstract principles cannot be patented. Similarly, discoveries of the laws of nature and physical phenomena cannot be patented. New, useful, and non-obvious inventions based on such ideas and phenomena, however, can be patented.
Novel. An invention is ‘novel’ if, at the time it was invented, it was not ‘known or used by others in this country, or patented or described in a printed publication in this or a foreign
country’.
Non obvious. To be patentable an invention must be more than a trivial modification of previously existing inventions.
Useful. For a patent to be ‘useful’, it must function as described in the patent application and it must fulfil some purpose. This is a lenient test, which will generally only be failed when the invention is impossible to put into
practice.
| How a patent protects your invention |
| In India a patent is a right granted by the government to exclude others from engaging in activities such as making, using, importing, offering to sell or selling an invention. This means three things. One, granting a limited monopoly right to the inventors balances the interest of inventors (who seek compensation for their efforts), competitors (who desire to make use of previous inventions in their own inventions) and the public (which benefits from the availability of new and useful inventions). Two, it excludes others from using the patented invention for the duration of the patent term. The third aspect is what it entitles the patent holder to exclude others from doing (including making, using or selling) the patented invention. |
How do you file a patent?
The process of drafting and filing a patent application is known as ‘patent prosecution’. Although you can prosecute a patent without an attorney, it’s a good idea to retain an experienced patent attorney to obtain a patent. The goal of patent prosecution is to obtain broad protection for the invention and subsequent improvements on the invention as possible. Your attorney should, therefore, draft patent claims that describe the patent in terms that are as broad as possible. If the claims are too broad, however, the patent office will most likely reject the application on the grounds that the invention does not meet one or more of the statutory requirements (like, novelty, non-obviousness).
How do you file for international patent protection?
Although each country has its own patent laws, if you are seeking international patent protection you should also be aware of the Paris Convention and the Patent Co-operation Treaty. Approximately 110 countries adhere to the Paris Convention, under which if you file for a patent in one member nation, you will receive the benefit of that date of filing in all member nations.
You may also file an application under the Patent Co-operation Treaty, adhered to by approximately 88 nations, effectively allowing you to wait up to 20 months before filing in any other member nation. This can help avoid some of the cost of filing in multiple countries if you later decide that the patent is not worth prosecuting in more countries.
You can also file a single application with the EPO (European Patent Office), which can lead to patent coverage in all European countries that belong to the European Patent Convention. Whether to file with the EPO or with individual European countries will be decided based largely on the number of countries in which patent protection is sought, since obtaining a patent through the EPO is more expensive than obtaining protection from any one nation.
What are Internet patents?
Internet patents in the US have generated considerably controversy. Litigation such as Jay Walker’s Priceline suing Microsoft and Amazon.com suing Barnesandnoble.com, and by others that they hold patents that may be infringed by Internet players, have drawn a massive reaction. An example of the latter are the claims by British Telecom that its 1989 teletext patent may be infringed by the use of hypertext links.
Business patents have been allowed in the developed world. “…a patent may be granted for a scheme or plan where there is a means for putting the scheme or plan or effect”
How many years after it’s registered, is a patent and copyright valid?
Ordinarily, a patent is valid for 14 years, the exception being seven years for the pharmaceuticals and food industry. For software a copyright is valid for 60 years from the date of publication. For written work, it is valid for the author’s lifetime plus 60 years where the author retains the copyright. Otherwise, it is valid for 60 years from the date of publication.
What are product and process patents?
India follows both the product and process-patent systems. For the pharmaceutical, drug, food and chemicals industries, we follow process patents, while for all other industries the product-patent system. A product-patent system means that the end result–the product–is patented and not the process by which it is made.
A product/process patent may have within it many patents. What does this mean?
If a product/process is a unique invention, then every part is patented. Otherwise, a particular product/process is patented and the rest is licensed from the industry.
Rodney D Ryder