What is a Patent? Types of patents

In the field of Intellectual property, patents are the guardians of the innovation which ensures the advancement of the world for tomorrow. It feels safe when we imagine a world with mind-blowing ideas and revolutionary inventions all around. The patent is all about the invention which can make our life better without harming others. It simply means that any invention which is new for everyone and does not harm the rights of others is patentable.

In this article, we will discuss what is a patent, different types of patents its other mysteries and explore how they are helping to shape our world.

What is a Patent?

A patent is a monopoly right which is given to the person who has invented a new product or Process which is Novel, Non-obvious and capable of industrial application. The patent is given to the Inventor by the Government for a certain period, which is 20 years from the date of filing. This right excludes other people from making, using, selling, or importing the patent without the permission of the inventor. The inventor can make use of or sell his patent by himself as well as give the exclusive license to another person the make use, sell or import that patent and can earn money from it. In return, the Inventor must disclose all his inventions to the public by filing the patent form in detail which includes the best method to make that patent.

After the expiration of 20 years, the patent will come into the public domain, and everyone can use this without the consent of the Inventor.

The main idea of giving the right of patent to the Inventor is to promote the research and technology in the country which helps the country to grow more and more.

Types of patents

There are mainly three types of patent which is granted to the inventor by the government of the country. These different types of patents have their specific requirements and scope of protection. So let us discuss every type of patent.

Utility Patents

Utility Patents are granted to the inventor for a novel and useful process, articles of manufacture, machines, compositions or any new or improvements in old inventions. This is the most used type of patent which is being used in every country.

Utility patents are granted to the patentee for a certain period which is 20 years from the date of filing as per the Patents Act, 1970. To file a Utility patent, the inventor has to make the draft by filling the Form 2 which is called provisional or complete specification. The inventor has to describe the invention fully and he has to write the best method of making the product or process. It includes the working, novelty, non-obviousness and how it is useful in the industry.

There are different types of patent applications. The inventor has to choose the types which he wants to take into account. For example, if the inventor does not want to get the rights in other countries, then he can file an ordinary application. But if he needs to take the rights for the same patent in other countries, then he can go for a Convention application or PCT International application depending on the requirements. There is a specific process for filing a patent in India and other countries. The inventor can file himself or he can take the help of a certified patent agent who will draft the patent application and can also file the patent application on behalf of the inventor.

Design Patents

Design patents are another type of patent which provides legal protection to articles that are new, original, and ornamental designs for an article. The design patent provides the exclusive right to the make or that design to exclude others from making, using, selling or importing the invention which is similar or identical to the invention which has been registered as a design patent. The period for a Design patent is 10 years which can be extended for 5 years one time.

It should be noted that the design patents and utility patents are different from each other. The utility patents cover the working or method to prepare a product or process but on the other hand, the design patents contain only the design or ornamental features of the product such as shape, texture, colours or mixtures of these all in 2D or 3D. The Patents Act deals with the design patents.

Plant Patents

Plant patents are another form of Intellectual property which protects the new or distinct plant varieties. The plant patents are granted by the Government to the person or organisation who has invented or asexually reproduced a new plant variety.

The main criterion to gain the plant patent is that the plant must be new and distinct from other varieties. To get a plant patent, the person has to apply for the grant of a plant patent. This application must include all the necessary details related to the new plant. The draft for this application may also contain images of the new plant. The office will review your application and if your claim is genuine, then they will grant you the plant patent for your new plant. This right will exclude others from making, using or selling the same product without your consent.

Patentability criteria for a patent

Now the question arises what are the patentability criteria to make an invention be patented?

Patentability criteria include Novelty, non-obviousness and Industrial application of such invention. It means Any new product or process which follows the characteristics of a patent i.e., Novelty, Non-Obviousness and capability of Industrial application can be patented. Also, it should not fall under sections 3 and 4 of the Patent Act 1970.

Novelty

Any invention which:

  • Is new to everyone.
  • Does not come under prior art.
  • Does not Published before the date of filing.
  • Does not being used in the public.

Non-obviousness

If the invention is not obvious to the person who is skilled in that field of patent is considered as a non-obvious invention. It should have technical advancement economic significance, or both.

Industrial Application

Any invention which can be made or used in industry is known as capable of industrial application.

Section 3 (What are not inventions)

  1. An invention which is frivolous and contrary to natural laws
  2. Contrary to public order or may harm humans or animals.
  3. Mere discovery of living or non-living things
  4. Discovery of a new form of known substance or no result enhancement
  5. Admixture resulting only in the aggregation of the properties of the components.
  6. Mere arrangement or rearrangement of known devices
  7. Repealed
  8. Method of horticulture and agricultural
  9. Process for the medicinal or surgical.
  10. Plant and animal in whole or any part thereof including seed and microorganisms.
  11. Mathematical or computer programmes
  12. Literary or dramatic work
  13. Method of performing the mental act of playing a game
  14. Presentation of information
  15. Topography of Integrated Circuits
  16. Traditional knowledge cannot be patented as per this section.

Section 4 of the Patents Act

The patent related to atomic energy cannot be granted.

Who can apply to file a patent application?

The person entitled to apply for a patent:

  • The true or first inventor of the invention can apply to file a patent application.
  • Assignee of the true or first inventor is also entitled to file a patent application.
  • Legal representative of any deceased person(who invented the new product or process).

Any of them can file the patent application either alone or jointly with any other person.

Product Patent and Process Patent

The inventor can claim his patent for the Product as well as for the process of making a product. Any product or process which is new, non-obvious and can be made or used in the industry can be patented.

For example, a mobile phone can have more than 100 patents inside and the process of making the battery of the mobile phone can be claimed as a process patent.

The term to grant patent rights for both product patent and process patent is 20 years from the date of filing or the date of priority. The only difference between these two is that in the case of infringement, the burden of proof in the case of product lies on the plaintiff but if the case is related to the process patent, then the defendant has to prove in the court of justice that how his process of making the same product is different from the process which is already patented.

You can read the full article on the Examination Process of a Patent Application.

Term of Patent

Section 53 of The Patents Act 1970 has provided the term of the patent which is 20 years from the date of filing or the priority date whichever is earlier.

FAQs related to patents

Can the term Patent be Extended?

As we know the term of the patent is 20 years which is counted from the filing date or the priority date, this term cannot be extended from 20 years.

One patent is granted in one country. Can it be enforceable in another country also?

The patent is a territorial right and hence, a patent granted in one country cannot be enforceable in another country.

What are the 3 types of patents?

There are three types of patents which are Utility patents, design patents and Plant patents. Every type of patent has its uniqueness.

Conclusion

In this article, we have learned that the patent is one of the important rights which helps the inventor protect his invention from others from making, using, selling, or importing without the consent of the inventor. On the other hand, the inventor has the full right to make, use or sell his product or process for a term of 20 years. If any other person tries to do something with his patented article, the inventor has the right to file a suit of infringement against such person.

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