The law of registration of design is contained in the Designs Act. It is only a commercial design that is registrable. Commercial design means a design in accordance with defined contours within which an article is manufactured and put in the market.
There are certain similarities between design and trademark, and design and copyright. If an article is traded for its design, shape and configuration, it is called an article with a unique design. If the article is sold for the reputation it has gained by the brand name or trade name, it is called a branded or trademarked product.
In the first case, the goods are marketed for their striking shape and identifiable as such and, in the latter case, they are traded by the mark that identifies the goods and their manufacturer.
A design which is artistic may be copyrighted under the Copyright Act. When such a design is also registered under the Designs Act, if it is applied to goods which are sold in a larger number than 50, the registration under the Copyright Act stands cancelled. Similarly, if a copyrighted work is applied to the design, it ceases to be copyrighted and, if it is registered as a design, it may cease to be a design unless it is used for commercial purposes.
The term of a copyright is 60 years while the term of a design is 15 years only, provided it is renewed every five years. Thus, if a design is copyrighted, it lasts 60 years, counted from the date of the death of the creator.
If the same is registered as a design under the Designs Act, the maximum period of the monopoly is 15 years from the date of registration.
When the design ceases to be registered it can be used by anybody to manufacture and sell goods of the same shape and configuration.
Now, a few questions from readers:
Can a patent be granted to a theoretical concept or innovative idea?
There is no patent for ideas, however innovative they may be. Ideas are intended to flow freely. They enlighten the people. They are the property of the public.
Moreover, it is not possible to stop their spread. By themselves, ideas do not have any commercial use. Theories of management and the ideas which are called business secrets are protected as confidential information and are not entitled to grant of a patent. They can be protected by contracts made between the parties in that behalf. But the way the ideas are expressed can be copyrighted. When they are incorporated in a book, the book is copyrighted. The copyright granted in the book is not for the ideas it contains. It is only the method in which they are expressed, the phraseology used and the context in which they are presented by the author that is copyrighted. A patent is granted to the product manufactured by implementing the idea when such a product has a commercial use.
I applied for a patent more than a year ago. I got an objection report from the examiner, and replied to it about six months ago. Nothing seems to have happened thereafter. What shall I do? Should I wait indefinitely? In case I am actually granted the patent, will it be with retrospective effect from the date of my application or will it only be prospective?
It is claimed by the patent office that there has been very heavy filing of patent applications. It is, therefore, not possible for the patent offices to attend to all of them. The Patent Act, by a recent amendment, provided that if an application is made to the Controller of Patents to take up the application out of serial order and give an early hearing, the Controller may expedite the grant. You may accordingly file an application in the form prescribed and pay a fee of Rs500, and the Controller may grant the patent at an early date. Whatever be the date by which the Controller grants the patent, it takes effect from the date of your original application.
If the patent is an addition to the existing machinery, how do I describe my invention to be able to secure a patent?
An application for a patent can be filed as soon as the invention is made. Even if there are any doubts, the application should be made with a provisional specification immediately. If somebody who knows of it makes the application earlier, it is he and not the real inventor who will be granted the patent. If by any chance the invention is made known to the public before an application is filed for the patent, the application will be rejected on the ground that the invention has entered the public domain.
If the invention is for an improvement to the existing patented machinery, such improvement or addition by itself must contain an inventive step. Recently, four American citizens applied for a patent for a feature they added to the cellphone whereby the caller’s picture can be recorded and also be recalled. This system is called Picture Caller Line Identification and the patent was granted by the US Patent and Trademark Office in February 2007. Therefore, an application made for addition and improvement should itself contain an inventive step.
N.K. Acharya is an intellectual property rights attorney specializing in patents, trademarks, copyrights and design.
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