The creative work of the human mind is kept safe through several measures and the main motivation for the same is the encouragement for the creative activity. Several forms of protection of the creative activity have come about including those which are of particular interest in the industrial development. Patents being one of them.
Generally speaking, the patent is a monopoly grant and it enables the inventor to control the output and within the limits set by demand, the price of the patented products.
Underlying economic and commercial justification for the patent system is that it acts as a stimulus to investment in the Industrial innovation. Innovative technology leads to the maintenance of and increases in nations stock of valuable, tradeable and industrial assets.
A patent is granted for an invention which may be related to any process or product. An invention must fulfill certain requirements known as conditions of patentability.
The word “invention” under the Patents Act 1970 means “a new product or process involving an inventive step and capable of industrial application. (Section 2(1)(j)).
The patent must be in respect of an invention and not a discovery. The fundamental principle of Patent Law is that a patent is granted only for an invention which must be new and useful.
Attempts to harmonise patent laws worldwide are ongoing, there is no such thing as a 'worldwide' patent. Patent protection in overseas countries can be obtained in one of three ways-
The first way is to file individual applications in each country where patent protection is sought. This is known as a 'Convention Application'.
The second is having filed the first patent application in a Paris Convention country (one of the member states of the Paris Convention for the protection of Industrial Property) file separate patent applications in the other Paris Convention countries within 12 months from the filing date of that first patent application, with the benefit of claiming the filing date of the first application in all other countries.
The third and most popular method is to file an international application under the Patent Cooperation Treaty (PCT) designating the countries where protection is sought. The PCT is administered by the World Intellectual Property Organization (WIPO) and provides a streamlined and centralized procedure for acquiring patent protection in over 145 countries. The PCT procedure consists of two main stages: the 'international phase' and the 'national phase'.
Steps in PCT filling
- An applicant enters the international phase by filing with IP Country (i.e. the country in which he resides or where the invention is done) within 12 months of the priority date of their Country application (known as the 'basic application') a PCT application specifying the member countries in which protection is sought.
- The priority date of the basic application is recognized in each country where registration is sought. IP Country then forwards the PCT application to WIPO, which prepares an International Search Report (at a cost of $1,000), indicating whether there are similar inventions in other parts of the world.
- After receiving the report, the applicant may request a non-binding Preliminary Examination, to alert the applicant to any problems with the application.
- The International Search Report and Preliminary Examination is intended to provide the applicant with sufficient guidance to determine the value of proceeding with the application.
- The applicant then must within 31 months of the priority date of the basic application enter the 'national phase' by furnishing each designated patent office where protection is sought with (where necessary) a certified translation of the specification together with payment of the prescribed fee.
- The application will then be examined by each country where registration is sought under that country's national laws. Rejection in one country will not affect the application as a whole.
- And at the end of the process, the patent is granted.