The history of the Indian patent system dates back to the country’s pre-independence era, and it began with the passage of the country’s first patent law, the Indian Patents and Designs Act 1911. The Patents Act of 1970, which replaced this Act, was passed in 1972. The Paris Convention, the Patent Cooperation Treaty, and the Budapest Treaty of 2005 offered instructions for the amendment of the Act, which introduced various developments, including product patents in the chemical and pharmaceutical industries. A patent essentially grants an inventor or business the right to manufacture, sell, promote, and develop a new invention.
Different types of Patents
Since patent rights are territorial rights, there are many sorts of patents that are given globally (i.e., patent rights are enforceable only in the territory they are granted in). The following is a discussion of the many patent types:
- Product patents: To put it simply, occasionally inventors create a product and/or a method that solves a technological issue or introduces a fresh way to do a task. As previously stated, a patent application’s claims are what are protected by the patent, provided that the relevant patent office finds the claims to be suitable under the applicable laws and regulations. It follows that a patent is referred to as a product patent when a product is asserted to be protected in one or more claims and receives the aforementioned grant. It is important to remember that, generally speaking, several inventions cannot be claimed under a single application but rather must be claimed by different applications, with some specific exceptions such as related products, etc. If more than one product is claimed, patent applications for several inventions are typically refused. Technically speaking, a (product) patent application’s separate claims cannot seek to protect more than one product or a collection of products connected to form a single creative concept. But the same product may be the subject of multiple distinct claims.
- Process Patent: As the name implies, process patents are ones where the claims describe how something will be made. In other words, only the processes themselves are covered by patent rights; the final result is not. Again, when just method claims are given protection, some academics prefer to use the term utility patents (explained later). However, while utility patents are not awarded in India, process patents have long been granted under the Indian Patent Act, 1970. In fact, process patents were preferred more before India implemented the TRIPS minimum requirements through the three revisions in 1999, 2002, and 2005. This is due to the fact that process patents offered a lower level of protection because only the method, not the final result, was covered. This is due to the fact that process patents offered a lower level of protection because just the method and not the finished product was covered, which was particularly advantageous for developing nations like India. Product patents didn’t really take off in India until the patent rules were changed in 2005.
- Plant Patent: Plant patents are granted in the US, but not in India. In India, there is the Protection of Plant Varieties and Farmers Rights Act, 2001, with equivalent purposes and adjusted to serve India. If one comes across new, distinctive plants, that may not have been seen or heard of before; they can obtain a third kind of patent: a plant patent. However, the discovery must fit the requirements under the plant patent laws before applying. For instance, one cannot apply for this patent if the plant is a tuber propagated plant, or if it appears uncultivated. It should only be reproduced asexually. Asexual reproduction the act in which the plant is reproduced through cutting or grafting, as opposed to reproduction with seeds. Asexual reproduction is mandatory for plant patents, which typically do not cover organisms that are genetically modified. The focus of plant patents is primarily on unconventional horticulture. Like Utility patents, currently, there is no provision for plant patents in India and you can apply for the same in Australia, USA and Several European countries.
- Utility patents : Utility patents, another American idea, are not recognised in India. Anyone can obtain utility patent protection for 20 years, much like ordinary patents, if they create or discover a new and useful process, machine, article of manufacture, composition of matter, or any new useful modification thereof (some countries like China give 10-year protection for utility model patents). It’s interesting to note that the USPTO receives more utility patent applications than normal patent applications. This is due to a utility patent application’s less stringent standards compared to a standard patent application. Lower levels of non-obviousness, for instance, can be safeguarded. In other words, utility patents may be granted for minor enhancements.
- Utility patents typically come in two types: non-provisional and provisional. As was previously mentioned, the term “provisional” refers to short-term protection with the benefit of “patent pending” status under the title of provisional patents. When filing a non-provisional utility patent application, the applicant must provide all necessary requirements. The US filing date can be obtained quickly and cheaply through the provisional route by submitting a non-provisional or complete application within the allotted twelve-month window. It is important to note that the provisional application will not be reviewed and will acquire abandoned status if this 12-month term is passed.
- A non-provisional utility patent application is issued once the non-provisional application is submitted and the examiner has reviewed it for patentability. According to statistics, the USPTO receives about 500,000 patent applications annually, the bulk of which are for non-provisional utility patents.
Design Patent :It is important to note right away that India does not recognise the idea of design patents, which originated in the US. Under the Designs Act of 2000, designs are protected in India, provided that all applicable laws and regulations are followed. However, only designs are protected, and the owner is granted a 10-year copyright for their creations (extendable by 5 years upon fulfilment of certain conditions).
A design patent is granted for a practical object having an aesthetic design. Only the decorative expression is protected; none of the functional aspects are protected. The functional components are protected by a utility patent. A design patent may be applied for by anyone who has a concept or a product with decorative designs that are not obvious. Design patents are one form of industrial design rights. The distinctive visual elements of a product are protected by a design patent.
A design patent provides superior protection for your intellectual property rights. It helps to provide brand protection by assisting in stopping others from profiting off of your original thoughts and increasing the brand’s potential market share. Competitors may decrease the market impact of your brand by imitating your product’s design, which is also a part of your brand.
Requirement For A Design Patent
- The fundamental prerequisite for a design patent is that the product must still satisfy both the design and subject-matter requirements of an innovation. The primary focus of a design patent is on solely aesthetic, non-functional components of a patentable product. The visual decorative features that are incorporated into or applied to a physical product are covered by design patents.
- Many of the same laws are incorporated into both the U.S. design and utility patent systems. One of these requirements is that a novelty patent, as opposed to a design patent, must be awarded.
Difference in Patentability
Novelty: The layout must be fresh. This test is employed to assess a design’s novelty. Courts do not take into account the uniqueness of the design if it lacks specific elements since it relates to the structure and function of an article.
Originality :This idea is just a new kind of product with a unique shape. Despite using the same fundamental components, the new shape gives it a distinctive appearance.
Ornamentality : For a patent to be legitimate, the design must be unique. A later application will be denied if the original inventor decides not to contest the patent’s validity.
Article of manufacture: The majority of courts concur that the lack of an original shape or appearance at the moment of creation means the object lacks ornamentality and is not covered by a design patent.
Non-obvious
A patented design for a manufactured object must be made in accordance with Section 171. Accordingly, a printed or photographed image cannot be patented unless it is a reproduction of a real, tangibly created object. A designer of ordinary talent would have found a design to be obvious when it was conceived, according to the standard used to establish whether a design is non-obvious. The next step is to submit a patent application to the USPTO after your design satisfies the criteria.
Difference Between Design And Utility Patents
Utility patents typically protect an item’s functionality, whereas design patents typically protect its aesthetic appeal. Both design and utility patents are acceptable if an invention combines both a practical and an aesthetic component. However, the protection will be distinct. In other words, a design patent will only cover the ornamentation of an invention, whereas a utility patent will cover its functionality.
| DESIGN PATENT | UTILITY PATENT |
| Design patent is granted for an ornamental design of a functional item | When someone invents a new process, the new machine or a new manufacturing system |
| It only protects the ornamental manifestation | It protects the utilitarian features |
| It has unique visual qualities | It has unique composition or method of manufacturing |
Term of Patent
The term of every patent in India is 20 years from the date of filing the patent application, irrespective of whether it is filed with provisional or complete specification.
However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of 20 years begins from the international filing date.
Renewal fee is required to be paid annually to keep the patent in force. Restoration of patents is possible if applied within 18 months from the date of lapse
Conclusion
India has always understood the need of a robust patent system for the growth of business and industry, as evidenced by the changes made to catch up with the rest of the developed world. Since India has implemented a system of product patents, most nations are now looking for economic prospects. The number of patent applications has increased significantly. Technology-related innovators and inventors are passionate about safeguarding their intellectual property. Invention protection is greatly aided by patents. Creating an invention is not easy. It is impossible to come up with something new every day. An invention stands apart from others due to its unique design and features. The outside of a product influences customers’ decisions to purchase it and serves as a representation of the brand. Therefore, the protection of a design patent is essential to prevent infringement of an invention’s external look.
