Hello friends, have you ever had an idea and wondered if you can get a patent for it or what you should do to get a patent for it? I had similar questions a few years back and it took some effort to figure out the things. Fortunately I found out that it’s not at all complex; it just calls for a bit of information and some effort to follow a well defined process. Today’s article will highlight some relevant points in this regard and will be further elaborated with subsequent articles. Hopefully the information shared here will help some of you in identifying your own patentable ideas and getting them patented.
Idea vs. invention
Imagine that you have an idea and you want to patent it. You may ask if you can do so. There is only one correct answer to it – you cannot, not yet. Even the brightest idea would not result in a patent automatically.
It is not so bad though. With an idea you have actually taken the first step. Remember the wheels of invention? You are very much there within a prominent part of the environment for invention. All you have to do is to work upon the idea to turn it into an invention. An invention may be patented.
Wondering what an invention means? There could be many definitions but within the legal framework [ref. 1] it means a product or process which is:
- New (novel),
- Has an inventive step, and
- Has some industrial application (utility).
The jargon “inventive step” needs better clarity to make the picture clear. It means [ref. 2] at least one feature in the product or process that involves:
- Technical advancement compared to the existing knowledge, or
- Economic significance, or
- Both technical advancement and economic significance, and
- The feature makes the invention not obvious to a person skilled in the art.
We can elaborate this with an example. Suppose you have developed a new water filter technology that provides same effectiveness as a commercial RO water purifier but requires no electric power. This product has a new technology and saves electricity, thus has both technological advancement and economic significance. Had you just replaced an existing type of pump in a RO machine with another known type of pump to improve its performance, it would probably miss the not obvious requirement, as anybody knowledgeable in RO technology surely knows that. Fortunately, that is not your case, your machine has some feature which nobody would generally think as a solution. It is only after your patent application people could take a note and say “WOW”! Congratulations, your product has a clear inventive step.
The product is new, and it can be manufactured by relevant industry and used by people. Thus your machine qualifies as an invention. There you go! Now you can apply for a patent.
The requirements talked above are in line with the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement under the World Trade Organisation (WTO) and followed by the World Intellectual Property Organisation (WIPO). Therefore you can expect similar requirements world wide although the way of assessment may slighly vary.
Tips: A product or process, qualifying as an invention can only be patented. A mere idea is not patentable.
Is that all?
Almost, but not all. The condition of being “new” needs a relook; it should be understood from the legal point of view. A new invention is one that is not available to public domain (legal term is “anticipated”) before the patent application is filed [ref. 3] by publication or use anywhere in the world.
It is thus extremely important to be sure that your work is indeed new. This can be done through prior art search from various patent databases and scientific literature. Major databases and a few search tips can be found from the “Useful Links” section of this website.
Conducting a prior art search ensures that nobody else has done the same work. Equally important is to manage your own publication. As a thumb rule you should file a patent application before publishing a related paper or demonstrating it elsewhere. Of course there are a few exceptions but it is better not to rely on them. If you are interested about the exceptions, please see Chapter VI of the (Indian) Patents Act.
Tips: Do not publish or demonstrate your invention before filing a patent application.
WHAT is a Patent?
Now that you are ready with an invention, you would most likely expect recognition for it and possibly monetary benefits too. In India publishing a research paper based on the research work is often regarded as a recognition and possibility of a patent is overlooked. However, you can have both!
Let us learn about what a patent is and the benefits it may give. In simple words a patent is a legal recognition of an invention that grants certain exclusive rights to the patentee (the applicant). These rights prevent others from making, using, importing and selling the patented product or process [ref. 4]. The patentee can transfer the rights in part or full to a third party by means of assignment or licence. He may legally challenge anybody violating the rights.
These rights are territorial (valid within a specific country). If you have a patent in India, the rights are applicable here but outside the country there is no protection. It would require a patent in another country also if you wish to protect your invention in that specific country.
A patent, if granted, is valid from the date of application for a period of 20 years [ref. 5]. Hence remember once you file a patent application, your clock starts ticking. So plan well to exploit it’s full commercial potential. However, keep in mind that the patent office only confers you the rights, it does not ensure automatic money. It is up to you to make use of your rights to generate monetary benefits.
Tips: Patent is a legal recognition that confers exclusive rights to the patentee and is valid for 20 years from the date of application.
Who can apply for a Patent?
It is time to file your patent application. Let us see who can file it. The Indian patent law permits the following persons to apply for a patent with the Indian Patent Office [ref. 6]:
- The inventor(s),
- The assignee of the inventor(s),
- The legal representative of an inventor or assignee if he died before filing the application,
- The above persons either singly or jointly with any other person.
This means you, the inventor, can manage your application all by yourself. It is a cost effective way provided you learn about the filing process and write a proper patent specification. You will only have to pay the official application fees, usually a few thousands.
If you do not want to break your head for this and have enough funds, then hiring a patent agent is a good option. A patent agent is a techno-legal professional authorised by the patent office to process the application on your behalf [ref. 7]. A number of firms may also do the job through their patent agents. The application expenditure increases due to the fees an agent would charge.
If you assign your invention to somebody else, termed as the assignee, he can make an application. You will still be recorded as the inventor. It is between the inventor and assignee to decide the terms and conditions for transfer of rights, the patent office will not play any role here but may require proof of such agreement.
Tips: The inventor, assignee and their legal representative (for a deceased person) can file an application himself or through a patent agent.
How to apply for a patent
The major work for filing a patent application is to write an appropriate specification for the invention. The Indian Patent Office Manual has adequate details to follow and file your application. Similar manual is also there for an international application with WIPO. In this article I am not detailing the application process. There will be dedicated articles later covering this. Meanwhile, if needed, the links given in our “Useful Links” page can be referred to.
Tips: The Patent Office Manual has well defined procedures to prepare and file an application.
Following sections of the Patents Act, 1970:
- Section 2(j)
- Section 2(ja)
- Section 2(l)
- Section 48
- Section 53
- Section 6
- Section 127
About the author: The author is an experienced Mechanical Engineer and inventor.
Next article: What are not patentable? Expected during the second half of February 2018.