Frequently Asked Questions about Patents in India

by Jun 8, 2021Uncategorized

Here are some frequently asked questions and myths about patenting.

Should we have made our invention before patenting it?

You can file a provisional application that requires the applicant to furnish specific details. These include the applicant’s details, the title of the invention, drawings (if possible), invention specifications explaining how to make the invention. You do not have to include claims in the provisional application. Thus, it is not necessary to have the invention ready, but it must still be novel.

Should our patent match our product design or specification?

You do not have to fix the design of your application as it limits the value of your patent both technically and commercially. A good patent application will consist of its scope in the use of broader/ wider field of application.

Does Patent-pending give me the right to stop competitors?

A patent-pending does not stop a competitor from making, using, or selling your invention. There is a threat only if the invention comes into force through a patent grant. 

Can a granted patent be revoked?

Patents that are granted often face post-grant opposition too. There may be objections when a competitor finds the use of your invention, and they know that a similar technology exists.

Does getting a patent means we have right to make and sell the technology?

Merely holding the patent for an invention does not automatically entitle you to use it. You must be more careful if there are other parts used in the technical invention or process.  You must seek licensing or permission to use patented features from other inventors.

Is a granted patent enough to prevent anyone from making our invention?

It is the responsibility of the assignee (owner) of the patent to keep in check, track and sue a potential infringer of the invention. As a proactive measure, patent holders can mark their products with the patent number.

How long does it take to get a patent?

A patent is one of the essential tools for protecting your invention. Standard times may take up to 2.5 to 3 years from the priority date, i.e., the first date of filing an invention anywhere. There are some schemes from Government that allows for accelerated examinations of the patent application. A patent can be granted in 12-18 months in cases where request for accelerated examination is made.But when there is infringement after the grant of a patent, you can get a good amount of compensation from the priority date.

Can we sell our product if a competitor’s patent is granted after the launch of your product?

It is unwise to assume that the grant of somebody else’s patent causes no harm to us after launching our product. Any evidence that shows that your product came into use after the patent will lead to an infringement lawsuit. If the filing date is before the launch of your product, you will be infringing on the patent. Infringement suits lead to the payment of large compensations.

Is it safe to assume that we are not infringing any patent because we did not copy any invention?

You can be guilty of infringing a patent even if you had no intention of doing so or were unaware of its existence. Thus you must conduct a prior art search and file an invention as soon as you are sure of its novelty and industrial use.

Can a patent owner sue us for infringement if our product comprises parts made by our suppliers?

Anybody with a patented product can sue you for infringement. An infringer is one who sells, uses, or makes an invention without permission from the patent holder.

If we use old technology are we safe from infringing any patents?

Old technology could be the basis of significant improvements in a product or invention. A lot of innovations are minor improvements over older available technologies. Inventors can still sue you based on old technology for patent infringement.

Can i get patent on a minor improvement to a technology?

Even minor improvements that are novel and solve a problem can get a patent. Most patented inventions are, in fact, modifications to existing technology with increased efficacy.

Can i get a patent if the invention is shown publicly before applying for a patent?

No, you cannot patent an invention after disclosing it in public. Patents are given when the invention has at least one element that is new in the world. If you show your invention to the public, and someone takes a photo, that becomes proof that the invention was known before the patent was applied. To be safe, file a patent application before talking about your invention publicly. 

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

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