To understand how to get a patent and understand its meaning, we will have to begin by understanding intellectual property law. It is a set of related legal rules that are intended to protect the products of human ingenuity. That is intangible ideas, words, sounds, images. So, let us unpack that a little bit. So, intellectual property law, as you might expect from the title, is a set of legal rules.
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What is Intellectual Property law?
They are intended to protect things that are otherwise not easily protected. These are intangible goods, ideas, words, sounds, and images which are difficult to protect, absent some legal rules.
That is, it’s quite different from the property that your house sits on, for instance. That is where you can build a fence or you can take other steps to protect that property.
An intangible asset, such as your ideas, words that you have created and written down, sounds that you have emitted, images you have created are all covered. Those are not protectable, absent some legal rule and that is what intellectual property law does.
It is a set of rules that are intended to protect those things because they would otherwise not be especially protectable.
So, let us look at the forms of intellectual property, the types of intellectual property that you are likely to encounter in your business and personal world. In this article, I want to go over patents.
So, what patents cover are processes, a flowchart, a computer program, or any type of industrial process that might work to make something better. Almost any process you can think of is potentially patentable and falls within the scope of patents. It has to be beneficial. It must provide value to the ordinary man’s life and must not benefit or support the usage of illegal substances or be used for any unethical purpose.
Now, again, just because it falls within the subject matter of patents does not mean you can get a patent on it. So, even, for example, the process of making an online course. That is technically something that you could patent. It falls within the scope of a patent.
Patents can cover the ideas embedded in things, the proverbial better mousetrap, for instance.
So, what is it that is better about that mousetrap? That is what you can patent. You patent your new mousetrap. It covers your ideas embedded in that mousetrap.
Importantly, it covers not only the mousetrap itself but the ideas, the innovative ideas that you are presenting as part of that machine or manufacture. Then, finally, patents cover compositions of matter. So, compositions of matter are an incredibly broad concept. It can be anything.
Patent can be anything from a new chemical formula, a new structure for some sort of device, or some sort of material. It can be something like a pharmaceutical drug that is contained in a particular kind of package.
The composition of matter is an incredibly broad concept and allows all kinds of scope for patentability. So, what you should take away from this is that patents cover an enormous scope of subject matters across the economy and frankly across human ingenuity
You can patent almost everything you can think of. It is a process that can be described as a process or be embedded in some machine. That is what a patent can cover.
What’s the legal standard?
Just because you have something that’s within the scope of the patents’ subject matter doesn’t necessarily mean that you can get the patent. There’s a legal standard. So, to get a patent, you have to show novelty, non-obviousness, utility, and disclosure.
But for shorthand, what we’re going to do if you have a better mousetrap is we’re going to first compare it to the mouse traps that came before. The question we’re going to be asking is, is this a new and indeed better mousetrap than what came before? If it is, then that’s potentially patentable.
The second thing we’re going to ask is, is it useful? Then, finally, we’re going to ask, have you completely disclosed it? Have you told the public what it is that’s new about your mousetrap? What it is that makes your mousetrap distinctive, useful, novel, and non-obvious? That’s the requirement.
The patent law then sets up basically what you might describe as a quid pro quo, meaning you give something as the patentee. What do you give? You give your invention. You essentially have to describe your invention in complete detail to the public and that becomes a public document.
In exchange, you get the patent right. The law of patents tries to enforce that bargain between the patentee and the public and that’s why we require disclosure. That’s why it requires things like novelty, non-obviousness, and utility. So, that’s the legal standard for patentability.
How much money will it cost?
When it comes to the cost of getting a patent, the following two elements come into the picture:
- Government fees for forms and renewals
- If you choose to have an agent, then the charges for the professional
How do you get it?
Well, for a patent what you do first, is you need to invent it. You don’t get a patent for something that you haven’t invented. So, what do we mean by invention? Well, invention goes back to the legal standards.
So, it’s not an invention if it’s not novel, nonobvious, if it isn’t useful, and if you can’t fully describe it. So, once you have that invention, what you need to do is write it up. You can write it up yourself. You can hire an attorney to do it. People do it in different ways.
The Patents Act, 1970 which governs the filing and regulation of existing and new patents in India, is the central body. According to the Act, the inventor, his assignee, or one of his legal representatives (if the inventor is deceased) can apply for one at the Indian Patent office.
If the applicant is not a citizen of India, he or she must file the application in their home country (where the address for service of the applicant is located).
Then, after researching and making sure that your invention fulfills all the requirements, draft the application on your own or take a professional’s help to do this.
You can register a patent application using the correct forms and fees in the prescribed manner. When filing a patent application to the patent office, you must pay fees of INR 1,600, 4,000, or 8,000 (depending on the type of application). If you do not seek early publication, the patent application will be published when the 18-month period has passed.
The applicant must request that the Indian patent office analyze his patent application within 48 hours at this point. The cost of requesting an examination range from INR 4,000 to INR 20,000.
Then, the draft and report presented to the patent office personnel are thoroughly inspected. The creator has the opportunity to explain his novelty or inventive step over any other piece of art discovered throughout the assessment at this stage. If everything is clear and solved, the patent application is almost ready to be implemented.
Evaluation of the patent
Two or three patent examiners evaluates it. These examiners are usually very skilled.
They will evaluate the patent application that you or your attorney or both have drafted. They will determine whether it meets the standards of patentability.
If the patent office believes after some back and forth that you have created a patentable invention and that your application has something in it. If it meets the standards for patentability, then the patent office issues the patent. The patent is issued in a particular document.
What happens when a patent expires?
The earlier you apply, the earlier your patent expires. When a patent expires, the subject becomes property of the public. It comes in the public domain. Anybody can use your invention, your idea. This again is part of the bargain.
Part of the bargain is you’re fully describing your idea, but you only get it for a limited time. You get just for 20 years to protect it. After that, the public can use it in any way that they want. Indeed, in many areas of the economy.
In particular, pharmaceutical drugs, you’ll see new drugs shipped almost immediately upon patent expiration. So, this becomes a really important aspect of the patent law that it expires after 20 years from the date of application.
The advantages of obtaining a patent
Although the entire process of filing a patent is lengthy and complicated, it is important to recognize its significance. With technological developments, the process is likely to become simpler and easier.
A patent guarantees that no one else will be able to claim ownership of your idea. If an infringement occurs, you can seek legal assistance to avoid complications that could stymie your progress.
- Helps in preventing your invention from being stolen.
- It gives you freedom of exclusivity
- It’s simple to create and market a product.
- Since your idea has become a brand, you have a larger market share.
- It Increases monetary worth and profit margins
What kinds of inventions aren’t patentable?
Even though the purpose of a patent is to protect the creator’s work, many things do not qualify for one under Indian law (sections 3 and 5 of the Indian Patents Act, 1970)
- Agriculture or horticulture in any form
- Any procedure that falls under the heading of medical, surgical, curative, or other human, animal, or plant treatment.
- An advancement or discovery in the field of atomic energy.
- Unique machine, device, or process discovery.
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