How to obtain PATENT and TRADEMARKS in India. JIII and AIPC. Brinda Mohan, India

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1 How to obtain PATENT and TRADEMARKS in India by JIII and AIPC Brinda Mohan, India

2 Mohan Associates Advocates, Patents and Trademark Attorneys. D 4, III FLOOR CEEBROS BUILDING 11, CENETOPH ROAD TEYNAMPET CHENNAI Ph.No Fax No aamohan@vsnl.com

3 Patents Patents (Amendment) Act 2005 has come into force with effect from March The definition of patent now reads as A new product or process involving an inventive step and capable of industrial application

4 Legislations Current Patent Act complying with TRIPS

5 Administration India have 5 patent office located in different parts of India.

6 International Treaties We have bound by Paris Convention and PCT. As such applications can be filed within 12 months claiming priority from convention countries. National Phase entry can be made claiming priority within 31 months from priority date.

7 TYPES OF PATENT APPLICATIONS You can enter as conventional application or PCT National phase application or as a regular application not claiming any priority.

8 WHO MAY APPLY The inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee.

9 GENERAL PRECAUTIONS FOR APPLICANT The first to file system is employed, in which, among persons having filed the same invention, first one is granted a patent, therefore, a patent application should be filed promptly after conceiving the invention.

10 WHAT IS PATENTABLE INVENTION A new product or process, involving an inventive step and capable of being made or used in an industry. It means the invention to be patentable should be technical in nature and should meet the following criteria:- i) Novelty; ii) Inventive Step; iii) Industrially application;

11 WHAT IS NOT PATENTABLE (a) frivolous (b) contrary to public order or morality (c) the mere discovery of a scientific principle or the formulation of an abstract theory (or discovery of any living thing or non-living substances occurring in nature); (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or mere new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;

12 What is not patentable (e) a substance obtained by a mere admixture resulting only in the aggregation of the properties (f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; (g) a method of agriculture or horticulture; (h) any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

13 What is not patentable (i) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals; (j) a mathematical or business method or a computer programme per se or algorithms; (k) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; (I) a mere scheme or rule or method of performing mental act or method of playing game;

14 What is not patentable (m) a presentation of information; (n) topography of integrated circuits; (o) an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. (p) Inventions relating to atomic energy and the inventions prejudicial to the interest of security of India.

15 DOCUMENTS REQUIRED FOR FILING AN APPLICATION 1) Application form in duplicate (Form 1). 2) Provisional or complete specification in duplicate. If the provisional specification is filed, it must be followed by the complete specification within 12 months. (Form 2). 3) Drawing in duplicate (if necessary). 4) Abstract of the invention in duplicate. 5) Information & undertaking listing the number, filing date & current status of each foreign patent application in duplicate (Form 3).

16 DOCUMENTS REQUIRED FOR FILING AN APPLICATION 6) Priority document (if priority date is claimed) in convention application, when directed by the Controller. 7) Declaration of inventor-ship where provisional specification is followed by complete specification or in case of convention/pct national phase application (Form 5). 8) Power of attorney (if filed through Patent Agent). 9) Fee includes basic fee and priority claim fee. Fee for pages beyond 30 and claims beyond 10.

17 PUBLICATION Publication: Just after 18 months from the date of filing of the application or the date of priority whichever is earlier. Early Request for Publication: With additional fee for publication within one month ordinarily.

18 Request for examination Application examined only after request filed within 48 months from priority date otherwise the application is deemed abandoned.

19 EXAMINATION COMPLIANCE Compliance within 12 months from the date of First Examination Report (FER). No further extension of time is available in this regard. Otherwise deemed abandoned. When all the requirements are met the patent is granted, after 6 months from the date of publication, the letter patent is issued, entry is made in the register of patents and it is notified in the Patent Office, Journal..

20 WITHDRAWAL OF PATENT APPLICATION Within 15 months

21 PRE GRANT OPPOSITION Can be filed without fee and request for being heard can be made.

22 GRANT OF PATENT When all the requirements of the FER are met or in case of opposition under section 25(1),if the opposition is decided in favour of the applicant,the patent is granted, after 6 months from the date of publication under section 11 A, the letter patent is issued, entry is made in the register of patents and it is notified in the Patent Office, Journal, thereafter opening the application,specification and other related documents for public inspection on payment of prescribed fee.

23 TERM AND DATE OF PATENT Term of every patent will be 20 years

24 POST_GRANT OPPOSITION Within one year from the date of grant with a request for hearing.

25 Maintenance RENEWAL FEE: To keep the patent in force, Renewal fee is to be paid every year. RESTORATION: Within 18 months of lapse.

26 FILING Title of invention, Field of invention, Background of invention with regard to the drawback associated with known art, Object of invention, Statement of invention, A summary of invention,

27 Filing A brief description of the accompanying drawing, Detailed description of the invention with reference to drawing/examples, Claims, Abstract. Language English or Hindi The specification must start with a short title, which describes the general nature of invention. Restriction on 30 pages and 10 claims Additional fee applicable beyond.

28 Patent Stimulating INNOVATION NOVELTY Patent can be obtained only if an invention is new NON-OBVIOUSNESS An invention must be more than a routine modification of something already known Enhancing value should have commercial UTILITY

29 Innovation An improvement on something known. A new combination of different matters already known. New combination arrive at an old result in a better or more expeditious or economical manner. Manner of new manufacture.

30 Improvement Improvement must independently satisfied the test of invention. Infact almost all patents are for improvements.

31 Novelty Novelty not defined under Indian Law. Should be new, must not be publicly known or publicly used-prior to filing of an application. Patent would not be granted to enable the patentee to stop another trader from doing what he had done before.

32 Non Obviousness Obvious and does not involve any inventive step. What was known and used before the priority date of the claim. A skilled technician who is well acquainted with the technique should not have knowledge test is not that of common man.

33 Idea Idea - cannot just have an idea and ask for patent. For e.g. Mere idea of a new gene not enough. Must be able to demonstrate that the gene exists, commonly done by its isolation, purification and characterization.

34 What does a patent cover? Protects the use, manufacture, sale, importation of the patented invention. Does not cover Laws of nature, algorithms, mental processes New uses for an existing product per se, Computer software per se

35 What is patentable? Useful - easily met by most chemical inventions New - not known by others, or disclosed by the inventor or others; Non-obvious (inventive step) - even if new, the invention should not be such that it would have been obvious to the skilled person, having before them all relevant prior art Is there a motivation or suggestion in the prior art? Does the new invention give surprising results? Does the prior art teach away?

36 Parts of a Patent FIRST Covers prior art, the description of the invention, manner and processing of making and using it. SECOND covers claims. Patent is equivalent to a property and the claims delineate the metes and bounds of that property.

37 PATENTS CHECK LIST THE DETAILS REQUIRED FOR FILING OF A PATENT APPLICATION :- Title of the invention. Inventors' names in full with the initials expanded and the residential addresses. The prior art in the field. The object of the invention. Provisional Specification/Complete specification with claims and drawings.

38 PATENTS CHECK LIST Main advantages of the invention over the existing and traditional art in the field. Commercial utility value of the invention.

39 When to file for a patent Application must be filed before: public disclosure (written or oral) public use offer of sale Otherwise, patent rights will be lost

40 When to file for a patent Notes: U.S. allows for one-year grace period Europe, India and Japan does not allow for grace period. Experimental use is not a disclosure (but check with patent counsel first!) Disclosure under secrecy agreement may prevent a public disclosure, but could be considered an offer of sale (check with patent counsel first!)

41 Should a patent be filed? Technology considerations Is the invention patentable - new, useful and not obvious? Novelty and obviousness determined based on comparison with existing technology - prior art Prior art includes patents, publications, public uses Does inventor know the prior art or should a prior art search be conducted?

42 Should a patent be filed? Economic considerations Is there a market for the invention? Does the invention address a present or future need in the industry? Is the manufacture of the invention costeffective? Does the cost of patenting outweigh the potential economic gain? Involve marketing group in the decision

43 If you think you have a patentable invention... Prepare a new invention disclosure Description of invention What problem is solved? How is the new composition/process better? Is data available? efficacy of new invention comparison with prior art compounds

44 If you think you have a patentable invention Description of known prior art was a search done? is a further search needed? Identify potential for marketability Identify the dates of any known or planned public disclosures, offers for sale.

45 Keep in mind Keep accurate lab notebooks, dated and initialed/witnessed You may be called upon to prove that you conceived of your invention prior to your competitor You can avoid a cited prior art reference by showing earlier invention

46 Keep in mind Time is of the essence - Submit invention disclosure and file application promptly To win on first to invent, must show that you did not delay in filing from date of conception Foreign patent offices give rights to first to file Improvements to invention made after initial submission of disclosure submit further disclosures promptly - (original application will be published in 18 months)

47 Keep in mind... Best mode - must disclose the best mode known to you for practicing the invention Inventor ship - identify all inventors who contributed to the invention as claimed Data - provide all data efficacy superiority / comparative data

48 Prosecution of Application During the prosecution of the application which commences with the filing and continues with the examination by the Examiner who usually rejects all or some claims. The applicant can then amend the claims until all claims are granted, all claims are rejected or some are granted and others rejected.

49 What is the advantage of the Patents (Amendment) Act? Gates are open for registration of microorganisms, bio-technology, genomes, bio informatics, IT Patents not computer programs per se but software related to products, such as, a telecommunication software patent. These areas are still gray areas. The complete specification should be filed within 12 months of filing of provisional specification.

50 Unless the applicant makes a request for examination within 48 months of filing of application for patent, the application will not be examined. An application for patent would be abandoned unless the first statement of objections are complied with within 12 months from date of issue of objection.

51 Patent is now valid for a period of 20 years. The Act also provides for compulsory licenses.

52 The Patents (Amendment) Act 2005 assented by the Hon ble President of India in March 2005 and has come into force. Indian Patent Act complies with WTO and TRIPs. India s international commitment fulfilled.

53 Major Leap Prohibition on grant of product patent for food, medicine, drug and chemical processes removed. Product patent regime in respect of drug, medicine, food and chemical processes is now implemented in India. Uniform patent protection for product and process for 20 years.

54 Grant When a patent has been published but not granted any person can make a representation to the Controller requesting him to refuse the application on the ground of lack of novelty, inventive step and industrial applicability.

55 Opposition Opposition proceedings are available both pregrant and post grant of patent; Opposition may be filed within 3 months of publication; After grant of patent but before expiry of 12 months from date of publication of the grant of patent, any person interested may give notice of opposition to the Controller;

56 Compulsory Licensing The amended Act provides for compulsory license for manufacture and export of pharmaceutical products to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public help problems. The concerned country where the goods are imported should have granted compulsory license.

57 Examination File application; After 18 months patent office publishes the application; Once published the application is open for inspection. After publication applicant should file request for examination request for examination should be filed within a maximum period of 48 months from date of filing or date of claiming priority. Exception you can request for early publication if application is interested in early examination.

58 Examination report Originally examination report could be complied with within 15 months of issue plus 3 months extension total 18 months. Amendment provides that examination report should be complied with within 12 months of issue.

59 Examination report compliance No extensions provided for compliance. Compliance has to be met in complete within 12 months.

60 IT Computer program per se cannot be patented; Technical application to industry or combination with hardware is patentable; Mathematical method not patentable; Business method not patentable; Algorithms not patentable.

61 IT PATENTS Patent and Copyright Distinction While copyright protection is specific and its protection scope is fairly narrow, patent can cover a relatively broader scope including various expressions or various programs.

62 Types of inventions that are patentable Types of inventions patentable: 1. Computer program with technical application to industry such as telecommunication program; 2. Computer program combined with hardware such as CADD

63 PATENT TECHNICAL MEMO PATENT TECHNICAL MEMO R&D IMPROVEMENTS RESOLVED PROBLEMS PRODUCT METHOD FIELDS OF APPLICATION ENVISAGED IMPROVEMENTS FACILITY FOR MANUFACTURING QUALITY MANUFACTURING COSTS PRIOR ART WHAT DOES THE NEW TECHNIQUE REPLACE

64 PATENT CAPTURING R&D TECHINCAL COMMITEE MEMO WRITE UP ON INVENTIONS LEGAL MANAGER PATENT ATTORNEY (OUT SIDER) SEARCH INDIA PCT PROVISIONAL / COMPLETE SPECIFICATION

65 Scientist R & D Written Description Commercial Value PATENT CAPTURING Search USPTO EPO WIPO Decide Meet Legal Manager Discuss Invention Multiple or Single Appln. Patent Attorney (Outsider) Oral Specification R & D Legal Manager Finalise Provisional Later Final PCT or India Choose Country Multiple or Single Appln. Time Limit Patent Attorney 48 Hours from finalising specification

66 Trademarks Act 1999 The long awaited Trademarks Act 1999 has come into force with effect from 15 th September Service marks can now be registered. Definition of trademarks is broadened. Infringement includes use of similar goods, use on trading style, use on advertising. Falsification of a trademark is a cognizable offence.

67 ADMINISTRATIVE STEPS INVOLVED Deposit:- Head office and its branches

68 Examination With regard to the distinctiveness, possibility of deceptiveness and conflicting trade marks. Consideration of any evidence of use or distinctiveness. Checks for absolute ground for refusal and relative ground for refusal.

69 Publication Official gazette Accepted marks.

70 Opposition Within 3 months extendable by 4 months; Counterstatement by applicant to be filed within two months failing which the application shall be treated as abandoned. Both parties given chance to file evidence and matter set down for hearing with order.

71 Appeal The registrar s decision is appealable to the Intellectual Property Appellate Board.

72 Decentralization Almost all functions of the Registry have now been decentralised and executed by respective offices except publication of journal, issuance of Registration Certificate and post registration activities including renewal which is done at TMR, Mumbai (Head Office)

73 Search Public search available. Official search available. Including like offering preliminary advice as to registrability; Official Search Report for issue a certificate under Section 45(1) of the Copyright Act, 1957 to the effect that no trade mark identical with or deceptively similar to such artist work as sought to be registered as a copyright has been registered as a trade mark; providing to interested public information and guidance on the subject; providing information to various government agencies including Police, Central Excise personnel, establishment of a Public Grievance and Redressal Cell, maintenance of top class IP library, the production of annual statistical report, production of official trade marks journal in electronic form and submit an Annual Report to Parliament.

74 Limitation of colour The application may be limited wholly to a combination of colours. Application without limitation to colour is deemed to be registered in all colours.

75 Honest Concurrent user More than one proprietor can hold identical or similar marks.

76 Chemical names prohibition Prohibition of registration of names or chemical elements or international non proprietary names. Commonly used and accepted names of single chemical element or any single chemical compound.

77 Representations of living persons Use of names and representations of living persons or persons recently dead. Consent required.

78 Series mark Registration of parts of trademarks or of trademarks as series. Series mark registration, fee applicable for each label.

79 Associated trademarks Associated when there is identity and near resemblance.

80 Application for registration Forms Goods 1 to 34; Services 35 to 42 Nice classification; User claim Nationality of origin, details of applicants Fee Power of attorney, if applicable. Multi class application allowed. Priority claim allowed

81 Word Label Carton

82 Monogram Logo Numeral

83 Name Colour combination Colour combination

84 Packaging Signature

85 Device Brand Heading

86 WELL KNOWN TRADE MARK Registrar shall protect well known trade marks against identical or similar marks Any person copying well known trade mark is considered in bad faith

87 PERMITTED USE You can license use of a mark subject to quality control measures Under new act permitted use includes licensed user. Registered user not mandatory.

88 ADVANTAGE NEW ACT Shape - Coke bottle; Colour combination; Packaging; Heading; Service vehicle service stations, banking, advertisement, repairs and maintenance, education, R&D, etc.

89 Filing of application Official fee is Rs. 2,500/- per class. Multi class application can be filed. For each class fee of Rs. 2,500/- has to be paid. For eg. You desire registration of a trademark in 4 classes, the fee structure would be:- Official fee Rs * 4 = Rs. 10,000/-

90 Filing application Word of caution If specification of goods exceeds 500 characters, we have to pay additional fee of Rs. 10/- per character in excess of 500 characters. Part B registration is repealed. No provision for disclaimer but Section 17 provides that there is no exclusive right in any matter, which is common to trade or is otherwise of a non distinctive character.

91 Application Number and date allotted within one week of filing of application. Within few months of filing of application examination report is issued. 8 Trademark Journals issued every month. Trademarks Registry hopes to be online by December Registry wants to achieve issue of registration certificate within one year of filing application.

92 Application You need not have the apprehension of filing application and waiting years before it is examined, accepted, advertised and registration certificate issued. In respect of applications it is difficult to get extensions of time for several months. While filing application be clear whether you want the mark and also keep evidence ready, which can be filed when we answer examination report.

93 Evidence By evidence, I mean sales figures, sales promotion/ advertisement figures prior to filing of application. Copies of invoices, order letters. Advertisement cuttings, schedule of advertisements in various TV channels, shipping documents. If possible, affidavits from trade and public. These affidavits are essential when you adopt dictionary word as a trademark and you have to establish that the word has acquired a secondary meaning being identified exclusively with your goods. Eg. word PREMIER.

94 Opposition Notice of opposition has to be filed within three months from date of advertisement. If you require extension of time of one month, the request for extension has to be filed prior to the expiry of three months. In other words the earlier practice of filing notice of opposition along with extension of time prior to the expiry of four months is no longer permitted. Official fee for notice of opposition is Rs. 2,500/-. For extension of time official fee is Rs. 500/-.

95 Opposition Evidence in support of opposition should be filed within four months of receipt of copy of counter statement. In other words the earlier practice of getting an extension of time for more than one year to file evidence has come to an end. Trademarks Registry is aiming at disposal of opposition within 18 months of filing notice of opposition.

96 Trademark registration Filing Numbering Examination Evidence Hearing Acceptance Advertisement Opposition Favorable conclusion Registration

97 Renewal Trademark is now valid for 10 years from date of filing. Earlier it was 7 years. In accordance with international norms registration is valid for 10 years and can be renewed for subsequent periods of 10 years each. Official fee for renewal is Rs. 5,000/-. In respect of multi class registrations for each class renewal fee would be 5,000/-. For eg. Registration in respect of 4 classes renewal would be:- Official fee 5,000/- * 4 = Rs. 20,000/-

98 RIGHT TO INFORMATION ACT-2005 The Trade Marks Registry is a subordinate office under Government of India, Ministry of Commerce & Industry, Department of Industrial Development (IP&P) established for the purpose of registration of trade marks in India.

99

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