A Patent is an exclusive monopoly rights granted by the Government to an inventor over his invention for a limited period of time in response to disclosing his invention before the public through the patent office. The owner of the patent, by exercising the patent right can exclude others from making, using, offering for sale, or selling the invention, and may commercially exploit his patented invention.
A patent is typically granted for a term of 20 years, and in majority of cases the 20 year period starts from the date of filing of the patent application.
In majority of the geographies, laws of nature, physical phenomena, abstract ideas, ideas offensive to public morality, mathematical formulas, literary and dramatic works and computer programs are not patentable. An invention is patentable only if its subject matter does not belong to any of the foregoing, and is new, not obvious and has utility or industrial applicability.
In contemporary world, an invention is developed after expending significant amount of labor, cost and time. In order to effectively utilize the potential of the invention and to encourage further innovations, some kind of legal protection curbing any possible unauthorized usage of the invention, becomes quite important. Patent is such a legal right, which allows the owner of the patent to exclude others from making, using, or selling the invention without the consent of the owner. Such an exclusive right enables the inventor to benefit commercially from the invention. The society at large benefits from the disclosure of the invention and the utility to general life, it heralds.
Patent may be obtained by submitting a patent application disclosing the subject matter of the invention before a patent office in a prescribed form in a particular geography. Patent application may be filed as a provisional patent application or directly as a complete patent application. The provisional patent application is filed as an impromptu application disclosing the invention in a crude form and the applicant normally gets a period of one year from the date of filing the provisional patent application to prepare the complete patent application and file accordingly.
Answer to this common question primarily depends on your financial situation and the stage of development of the idea. For most inventors, who are not sure of whether their idea would receive interest in the marketplace, a PPA is the best risk/reward option. Further, if an inventor has not developed the idea to its full extent or is not sure about the exact scope of the idea, the PPA would be a better option as it ensures a priority date for the invention. Further, in the next 12 months of filing the PPA, the inventor may work on the invention to fully develop it, and better strategize whether filing a complete application would be worth the expense and whether the invention would be commercially exploitable or not. On the other hand, if the inventor has completely developed the idea and is relatively confident about the commercial potential of the idea, he can directly file the complete patent application.
Filing of an application for a patent should be completed at the earliest possible date and should not be delayed. An application filed with provisional specification, disclosing the essence of the nature of the invention helps to register the priority by the applicant. Delay in filing an application may entail some risks like (i) other inventors might forestall the first inventor by applying for a patent for the said invention (ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her.
No, publication of an invention in any form by the inventor before filing of a patent application would disqualify the invention to be patentable. Hence, inventors should not disclose their inventions before filing the patent application. The invention should be considered for publication after a patent application has been filed. Thus, it can be seen that t11ere is no contradiction between publishing an inventive work and filing of patent application in respect of the invention.
For an invention to be patentable it has to be novel (i.e., it should not be described in any printed publication anywhere in the world), non-obvious and useful. Accordingly, it would always be advisable for the inventor to get the invention ascertained for novelty and non-obviousness against any existing prior art. If any prior art is found in such prior art search, the inventor may decide not to spend considerable expenses involved in preparation, filing and prosecution of the patent application. Further, the identified prior art in hand may also provide insights in drafting patent application for the invention thereby avoiding any rejection in view of the prior art during patent examination.
Each country is free to grant or refuse a patent on the bases of scrutiny by its patent office. This means that granting a patent in one country of the Union does not force other countries to grant the patent for the same invention. Also, the refusal of the patent in one country does not mean that it will be terminated in all the countries.
Once the patent is granted, the owner of the patent may work on commercially exploiting the invention. Alternatively, the owner of the patent may grant license to the market players who are willing to use the invention. The owner of the patent may also initiate a legal action against other competitors making, using, selling, or offering for sale the invention without the consent of the owner of the patent, and may seek for financial damages arising out from such infringement of the patent.
The patent cooperation treaty (PCT) is a multilateral treaty entered into force in 1978. Through PCT, an inventor of a member country (Contracting state of PCT can simultaneously obtain priority for his/her Invention in all/ any of the member countries, without having to file a separate application in the countries of interest , by designating them in the PCT application .India joined the PCT on December 7, 1998.
The patent office or nay other office designated by each contracting state becomes a receiving office for receiving patent applications These applications are referred to International Searching Authorities (ISA) which usually the patent offices, appointed to carry out the patent search on a global basis. In case the receiving office is also an ISA, a separate referral is not required . There is also a provision to get a patent application examined by international preliminary Examining Authorities which, in most cases are ISA.
A search report on the patent application filed with a receiving office is received by the applicant/inventor 16 months after the priority date which is nothing but the date of submitting the application in the receiving office. The International Bureau of the WIPO publishes the application and the search report 18 months after the priority date. The original application is then sent to the designated offices indicated in the application. Within two months of this i.e. by the 20th month, the applicant will have to formally apply to the patent offices of these countries for grant of patents by paying official fees and completing other formalities stipulated by these offices (some countries). In case translated copies of the application are required, the same has to be furnished by the applicant. Inspite of submitting the request for grant of patents in designated countries in the 20th month after the priority date, the priority in these countries is the same as the date of filing the original PCT application.
If applicant/inventor has requested for an examination report, the report is usually received by the applicant /inventor about 28 months after the priority date. Within two months of this, the applicant/inventor will have to formally apply for grant of patents in designated countries .The priority of the application is maintained in the designated countries.
(a) By the end of the 20th to 31st month the applicant is in a better position to assess the quality of the invention being protected as a detailed search report or an examination report or both would be available to help making an assessment.
(b) Applicants can re-evaluate their decision about filing applications in all the designated countries after a long gap of 20 to 31 months.
(c ) If not satisfied, applicants may decide to drop a few countries from the list. This decision would also be influenced by the changing market conditions.
(d ) Applicants can delay their investment in respect of the national phase or the regional phase applications by 20 to 31 months without sacrificing priority.