Inventions
Whilst there is no universal legal definition of what constitutes an invention, but as per Indian Patents Act, 1970, section 2(j), 2(ja) and 2(ac), an invention can be defined as:
(j) “invention” means a new product or process involving an inventive step and capable of industrial application;
(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;
(ac) “capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;
Furthermore, IDVENTORS is alert to the categories of inventions which the law restricts or excludes from patent protection, such as mathematical methods, software per se, abstract concepts e.g. business methods, or aesthetic creations which may be protected by other legal rights. Accordingly, IDVENTORS can identify the aspects of your invention which may be patentable and advise you on the most appropriate rights available to you.
Patents are available for protecting inventions which are new and involve an inventive step. In India, this requires The Patent Office (www.ipindia.nic.in) to consider all matter which has at any time before the relevant filing date for the alleged invention, been made available to the public (whether in India or elsewhere) by written or oral description, by use or in any other way. The Patent Office would also consider matter contained in a co-pending application for another patent provided certain conditions are satisfied.
Information that is held confidential, unpublished and not otherwise made available to the public, or is obtained in breach of confidence is not considered.
Therefore, whenever you have made improvements to a product or process you may have made an invention, and you must think about filing a patent application before exploiting the invention or disclosing it to others. IDVENTORS can initiate this procedure quite quickly at moderate cost in comparison with the costs of marketing and developing your product or process.
Risk Management
Failure to seek advice on protecting your invention before commercializing it also means that the investment made by you in bringing the invention to market may be at risk. IDVENTORS can conduct searches to determine whether others already hold rights which would dominate your invention and prevent or restrict its exploitation. IDVENTORS can also advise you on the impact that earlier patents may have upon the potential for obtaining useful protection for your invention.
Presenting an unprotected invention to market is a bonus to your competitors who may have been struggling to solve the problems which your invention overcomes. Applying for a patent means that these competitors have to consider your rights before copying or using your invention. Therefore, a patent application has a deterrent value as soon as it is filed.
It should be borne in mind that a patent application is generally published before the examiner decides whether a patent may be granted. Therefore if the application is abandoned or refused, the information published may alert competitors to your research interests. Therefore, advantage should be taken of the opportunity to review the application with IDVENTORS at the search stage prior to publication, so that if necessary the application may be withdrawn before publication.
Protection Abroad
A patent application made in India establishes a filing date that can be recognized in most countries of the world under an international convention (Paris Convention) as a priority date. The convention permits a patent applicant in one country to defer filing a corresponding application in a Paris Convention country for up to 12 months after the priority date provided certain conditions are satisfied. The benefit obtained is that the priority date is deemed to be the effective date for determining the state of the art (prior art) to be considered against the patent application, and resolving rights between co-pending competing applications for the same or similar inventions.
Other opportunities for postponing the expense associated with national patent applications without loss of rights are available through other international arrangements such as the Patent Cooperation Treaty (PCT. IDVENTORS can devise a strategy for filing your patent applications which will take advantage of these international arrangements, and also cover individual countries such as e.g. US, UK, Australia, Argentina, or Taiwan, where national applications remain the only route to patent protection.
Value of Patents
A patent provides the legal right to control the use of your invention by others. Although it may be possible to keep an invention secret, a competitor may be developing a similar invention independently, obtain a patent for it and then be in a position to control use of your invention. Therefore, you need a patent to prevent your competitors from exploiting such an invention. If your competitor does infringe your granted patent, IDVENTORS can advise you on how to recover damages and prevent the infringement from continuing.
Damages may be recoverable for acts of infringement occurring before the patent was granted, specifically from the date that your patent application is officially published. After the patent is granted a court order (interdict or injunction) may be obtained to prevent the competitor continuing to infringe.
A patent provides opportunities for expanding your capacity to satisfy a market quickly by licensing an appropriate commercial partner. A patent also allows you to consider exploiting new markets both geographically and in terms of technology with reduced risk due to the rights of control over exploitation that a patent provides.
Challenging Patents
A patent is obtained by an administrative procedure which for expediency is intended to provide a search and examination process which is most likely to be effective in granting patents which are valid. There is always a risk that a patent may be invalid despite the best efforts of the granting authority. Therefore, the legal systems in most countries allow patents to be challenged after grant, either by a formal opposition procedure or by a revocation/invalidity challenge to be lodged with the appropriate authority or court. IDVENTORS can assist you in dealing with patents which are blocking your commercial operations or product development, by advising on validity, conducting searches to find pertinent prior art not considered by the relevant patent office, preparing oppositions or drafting grounds for revocation. In some cases it may be prudent to submit observations before the patent is granted to assist the patent office in coming to the right decision on patentability. Even if the patent is upheld at the conclusion of the proceedings, its scope may be restricted allowing more freedom for competitive development.
Costs & Timeline
The costs for obtaining patents have to be considered in the context of a potential protection period of up to 20 years. Therefore, any invention which has limited market potential or is likely to be superseded in a short period of time due to the pace of development in the field may not justify patent protection if one considers cost considerations only. However, there may be other strategic reasons for applying for a patent. Therefore, the decision to patent or not should never be based purely on costs.
IDVENTORS provides free estimates of foreseeable costs for any contemplated procedure, and since the patent procedure may extend over several years, these estimates are reviewed before embarking on the next stage of the procedure to take account of changes in external factors such as increases in patent office official fees, taxes, foreign attorney costs, currency fluctuations etc.
Typically, the fees associated with taking instructions, drafting a description in the formal style recognized by The Patent Office, filing the application to establish a priority date and advising on patent procedures to be followed would be of the order of Rs30000-Rs.50000.
Taking account of the formal procedures which patent offices throughout the world generally follow, it is unlikely that a patent will be granted in less than 2 years under normal procedures. In many cases the patent process may span 5 years, or more it appeal and opposition procedures are encountered. However, it is possible to requested accelerated procedures in some patent offices, especially where there is an imminent threat of infringement to be dealt with. This means that a deserving applicant should not be denied access to justice on account of administrative delays.
