Patent may be granted where the intent is commercial

Patent may be granted where the intent is commercial

In the age of globalization, patents and intellectual property assume great significance. To help readers get an idea of patents, Mint presents an occasional column on the subject.

Under the Patent Act, if an application is made for grant of patent for an invention, the applicant may assume that he may, in all likelihood, be granted patent, because of many reasons.

One, the Act permits the applicant to print the words “Patent applied for" at all suitable places in the advertising material, on letterheads and bills and also wherever the name of the product is embossed.

This is intended to warn against any infringement. But it is also proof that the applicant is the sole proprietor of the invention and is correct in claiming the exclusive right to manufacture and market the product.

Two, the Act states that whatever be the date on which the patent is finally granted, it takes effect from the date of the application.

Three, when the patent office gives the application a specific number and date, it means it has accepted the application for consideration.

Four, when the Act allows one year’s time before the patent office takes the application up for active consideration, it means the office recognizes the applicant as the first owner of the invention and permits the applicant to enter into a contract with others for testing the commercial marketability of the invention.

And five, since common law also allows the first inventor of any product to claim exclusive right to manufacture and sell the product, it is safe for the inventor to assume that he or she may be ultimately granted the patent.

It is, therefore, normal for the applicant to enter into negotiations, agreements and finalize contracts with third parties to explore the commercial prospects of the product, and such applicants are legally competent to enter into any such engagement.

However, such contracts may provide?that ?parties are free to renegotiate terms, particularly with reference to any licences that may be granted after the grant of patent.

Is a patent granted to every invention?

Not necessarily.

The first condition is that the primary as well as the intended purpose of invention shall be commercial exploitation. This means that the invented product must be of some use to the people and the community.

It is better if it is of the nature of an?essential?commodity;?something that can sustain or improve life. But even a toy can be patented.

However, a substance that is novel but neither consumable nor capable of being used with any other substance is not patentable.

The second condition is that the invention shall not be contrary to public order or morality, or likely to cause serious prejudice or harm human, animal or plant life, or be destructive of the environment. That is why genes that could be used to terminate the life of a seed are not entitled for a patent. Here, contrary to public order means that which promotes hostility and enmity between and among different communities, and contrary to morality means that which promotes immoral and illegal or indecent behaviour. So any invention that offends the sensibilities of different communities cannot be patented. Inventions that are insulting, too, cannot be patented.

The patent office is reputed to be very strict in processing applications. Is this because of the procedures prescribed or the conduct of officials in the patent office?

The patent office is a very strict office because the rules have made it so.

It will not allow parties any free choice of time to comply with the objections the office raises. Nor will it delay in giving notices. Every step to be taken by the applicants as well as the office is time-bound.

The controller may not condone any delays unless a special application is filed together with the fees prescribed. If there is any delay in compliance with the objections the controller may raise, the application is either invalidated or declared lapsed.

Therefore, even though one may safely assume that a patent in all likelihood may be granted, the applicant shall be very vigilant in taking all steps as the controller may from time to time prescribe.

N.K. Acharya is an intellectual property rights attorney specializing in patents, trademarks, copyrights and design.

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