What is a patent?
A patent is a form of Intellectual Property Right.
When you buy a house or a car, it belongs to you. Therefore, you can use the house or the car. And this automatically stops others from using your house or car.
Patents are nothing like a house or a car.
Firstly, every patent is unique in the world, and protects an invention. You may file the patent having the same invention in multiple countries, but the invention remains unique and all patents are part of one Patent Family.
Secondly, patents give you the right to stop others from using your invention. This does not mean you can use your invention!!!
Thirdly, unlike a house or a car, you have to actively search for people using your invention (it may not be very evident). And then file a case to stop them from using your invention.
Fourthly, the value of a patent increases as the invention is used more.
And finally, patents expire. They last for 20 years from the date of earliest filing. They cannot be renewed after 20 years.
Patents are very valuable, more so for startups that are launching new products/ technologies in the market. Some reasons startups should apply for patents:
- Signals to customers that they are buying a unique product.
- Differentiates from competitors with “Patented Technology”
- Legally allows the use of “Patented Product” in marketing and product labels.
- Attracts investment from venture capitalists
- Helps in stopping theft by larger rivals, an investor or licensee
- Creates niche markets
- Helps build portfolio for licensing deals
- Helps leverage better profit margins for a unique product
- Helps start-ups to form joint ventures and R&D partnerships
- Patent portfolios increase the chances of the acquisition of a start-up at higher value.
Patents are exclusionary rights. An authority (like the government or patent office of a country) grants a patent for an invention. The invention may be a minor improvement of an existing product, technology, process, or chemical composition. Or the invention may be something completely new created by the inventor.
Typically, patents are solutions to technical problems.
And using a patented invention, knowingly or unknowingly, is called infringement. The patent owner can sue you for infringement.
Patent “Terminologies”
Patent pending vs. Patented
There are some fundamental differences between a patent pending (patent application) and a patented (product based on a granted patent)
A patent application is patent-pending, and a granted patent is an actual patent. An application is patent-pending until granted. It shows that there is a claimed invention or that an idea has a pending patent which can come into force if granted. In comparison, a granted patent allows you to sue another party for infringing on the claims of a patent. The claims are part of your invention in a patent document on which you have the patent rights.
An application is not final, but a granted patent is. A patent application does not mean that a patent will lead to a patent grant. It may receive objections from an examiner or a third party that may not meet its conditions for patentability. A granted patent is complete and final; you cannot make changes to the claimed invention, although some minor clerical changes can be made post the grant of the patent by way of amendments.
The power that a patent application gives vs. a granted patent. A patent application alone does not give the inventor enforceable rights. You cannot stop others from making, using, or selling a similar invention. A granted patent is enforceable, and you can sue anyone who infringes your patent.
Utility Patents Or “Patents”
Utility patents are what are known as “patents” in common usage. You can patent any invention that has novelty, inventive step and some form of industrial use as a utility patent.
Life: - 20 years from the date of earliest filing.
Utility Model
Some countries like Germany and China also grant utility models to holders (inventors). They are not patents and are less strict in scrutiny, e.g., in the inventive step. The kind code “U” at the end indicates a utility model.
Life:- Usually between 6 to 15 years.
Design Patents Or Design Registrations
They protect the distinctive appearance or the design of manufactured objects. Most famous examples are the patent cases between Apple and Samsung for the design of their tabs.
Life: In India, ten years from the registration date. Inventors can extend the ten-year term on request by up to five years before the expiry of ten-year term.
Maintenance Fees
The applicant must pay a renewal fee as per the local patent laws every year or in a lump sum to keep the patent in force. Non-payment of maintenance fees will deem the patent abandoned.
Can I patent this?
Having an idea does not guarantee a patent. Moreover, when a person files for a patent, the application has to undergo an examination. The examiner checks whether the invention relates to a product or process.
To be patentable an invention should meet 4 criteria
- Novelty: There should be an element of the invention that is new in the world. Yes!!! New in the world.
- Non - Obvious: The invention should not be a simple combination of existing things. The combination should give some unique or unknown or surprising results.
- Industrial Applicability or Usefulness: The invention should have use in the industry or day to day life.
- Patentable Subject Matter: The invention should not be restricted by law.
Don’t try to patent these...
In India, some inventions are not patentable as per law.
Useless machines, harmful inventions, illegal machines are not patentable for obvious reasons. And other inventions that can cause harm to the public are not patentable.
Scientific discoveries, mathematical formulas, and other similar efforts that uncover existing mysteries of the universe are not patentable.
Known chemicals, new properties of known chemicals, a simple mixture of known chemicals are not patentable.
Animals, plants, methods of agriculture, breeding techniques, seed varieties etc., are not patentable.
Methods of medical treatment, surgical procedures, treatment steps to treat patients are not patentable.
Business methods are not patentable.
Artwork, music, videos, performance, movies, TV programs, method of playing games, presentation, IC circuit topography, are not patentable.
Traditional knowledge of India is not patentable.
Inventions related to atomic energy are not patentable.
Computer programs and software are not patentable, per se. (“Per se”, is a loophole, and very useful in helping get software related inventions patented)
Note: The Indian Patent Office (IPO) deals with each case objectively, there may be exceptions as per the case.
Can anybody apply for a patent?
Yes. Provided they are the ‘true and first’ inventor of an invention. Any person from any country can apply for a patent application in India. In the case of a deceased inventor, a legal representative may file for the patent. Besides, an inventor may jointly file a patent application with any other person.
This article is part of the series IPR Toolkit for Startups in India. The series covers various types of Intellectual Property Rights that startups can get in India. Access all the articles in the series