FAQS

Getting one’s work patented gives one some inherent advantages and autonomy over the invention he toiled to make. Before we delve into the benefits of a patent, let us know what a patent is.

The ‘patent’ is a legally enforceable right that allows the recipient the absolute right to stop anyone from using, manufacturing, importing or selling the patented invention. An individual violating the rights of a patentee will be sued and shall be liable to pay compensation to the patentee.

Hence, as is evident, the benefits of a patent are:

• Giving the patentee company an edge over the competitors since the entity is the sole user of the invention.
• The patentee can license the invention to an industry to generate revenue.
• The patentee can bring in investments since the invention is patent protected and the investors can enjoy the market monopoly.

In order to be sure about the invention being patentable or not, a patentability search can be conducted to make sure that the invention meets all the three criteria of patentability, i.e. the invention must be of industrial applicability, it must be novel and must not be obvious.

A patentability search is always advised because the search is done by professional patent consultants using reliable and large databases to check the patentability of the invention. Considering the cost involved in the registration of a patent, it is recommended to get a patentability check. However, it is not mandatory to get one.

For a person to get a patent on his invention, the intended invention must meet the following criteria:

• The invention must be a novelty
• The invention has to be industrially applicable.
• The invention must not be obvious.

In order to get the invention registered for a patent, the potential patentee must go through the following process:

• The applicant must file the application for the patent registration. The date of application is known as the priority date. This is important because in case of two similar patent registration applications, registration shall be given in first come first serve basis.
• A publication is made by the Patent Office after the passage of eighteen months since the priority date. After the publication, it is examined by the patent office, for which a separate application must be made.
• Once the application for the examination has been made, the patent office provides an examination report. Any changes referred to must be done and should be reverted back to within 12 months.
• After this is done and provided that no objection is raised, the office grants the patentee his registration of patent.

As the name suggests, a complete specification is referred to the patent application that has been examined, verified, accepted and finally granted by the Patent Office. It also entails the description of the invention thus setting the legal boundaries.

However, in cases where the invention has not been entirely realized, a provisional specification seeks to outline the novelty and the utility of the invention. Supporting the submissions with claims are also not compulsory in case of a provisional specification.

Indians are not restricted from filing for international patents but must follow a certain chronology for doing so. The applicant, in this case, must apply to the patent office requesting to be granted a Foreign filing permit. In case the applicant has already filed for a patent inside the country, he must wait for a time period of six weeks.  One must note that failure to comply might result in the revocation of the patent or jail up to two years or both.

Granting of patents and the jurisdiction around it varies from country to country, However, we shall focus on the most widely known international patent grants.

• PCT (Patent Cooperation Treaty System)- The PCT allows a more fluid experience to the applicants. The applications are allowed within a time period of 34 months being calculated from the priority date. The PCT also aims at simplifying the process of forms and documentation. However, not all signatory bodies of the Paris Convention are members of the PCT. In such cases, the application must follow the norms of the Paris Convention.
• Paris Convention- the Paris convention facilitates the filing of an application directly to a foreign country. The filing application must be done within twelve months being calculated from the priority date.

Section 64 of Patents Act, 1970 elucidates that a patent may be revoked in case of a counter-claim suit for infringement of another patent. It can also be revoked by a petition of the central government or pf any person, if proved credible.

Copyright is an intellectual property right granted to protect literary, dramatic, musical and artistic works, computer programme of the creator. It displays the owners work and if someone uses their work without permission, the law protects the owner from it.

Literary work such as novels, sonnets, poems, plays, newspaper, articles computer programs, data bases films ,musical compositions and choreography. Evan artistic works like paintings drawings photographs and sculptures. Advertisement maps and technical drawings are also present

Any person who is an author or owner of the work may file for copyright. They can even hire a legal representative for it.

No registration is not mandatory as in India rights are given to the owner as soon as the work is created.

An application for registration of copyright has to be filed in the office of Registrar of Copyrights.The applications are also accepted by post. One can also file an on-line application for registration through “E-filing facility” on the official website of the Copyright office- http://copyright.gov.in

It usually takes about two to three months to get a copyright registration. In other cases, due to procedural delays, it may take upto 6 to 8 months to get the complete registration.

Lots of rights are provided to the owner like right to reproduce, right to publish, right to translate, right to make or issue copies, right to sell, right to adapt, right to commercial exploitation, etc.

Yes, it can be registered for copyright as computer software, programme and database comes under literary work.

A website is capable of getting the copyright protection. The content of a website may be registered as literary work.

In India, Copyright protection lasts for 60 years which varies according to the kind of work and authorship/ownership.In India copyright protection last for 60 years which varies according to the kind of work and authorship. original literary work like dramatic, musical and artistic works, the term period is counted from the following the death of the owner. On account of films, sound recordings, photographs posthumous publications, anonymous and pseudonymous publication, works of Government and works of international organisation, the 60 years term period is counted from the date of publication.

Copying the work of an owner without their authorization or permission is called copyright infringement. Violation of any right provided by copyright protection may amount to infringement.

Trademark is dealt with under section 2 (zb) of the Trade Marks Act, 1999. Simply put, it is any symbol that is original and unique and can be used to distinguish a particular product from other similar products.

A potential mark must fulfill the following criteria to be accepted as a trademark:

• The mark should be graphical, i.e. the user of the mark should be able to recreate it on a paper.
• The intended mark must clearly distinguish the products/services from other similar products/services.
• The mark should clearly establish a relation between the mentioned product/service and the rightful user of the mark.
• The mark should be unique. It must bear no resemblance with any other mark already in the market.

Any individual who claims the proprietorship of the mark that is in usage or is subject to be used is eligible to apply. It is prudent to note that a foreigner is eligible to applyfor the registry of his trademark provided that the product being referred to is well known in the country.

In order to ensure the uniqueness of the trademark to be registered, the individual can approach the Registrar with a form TM-M and the necessary fees. The individual may also verify the uniqueness of the trademark online through this portal.

The jurisdiction in case of registration of a trademark happens based on the principal venue of business. In order to facilitate the process, the five principal cities, namely Kolkata, Chennai, Ahmedabad, Mumbai and Delhi have trademark registry offices.

The trademark to be registered, if already in use must be furnished with an affidavit that proves the usage of the mark by the proprietor for the product/service.

In case of an application for a new registry, aform named TM-A is submitted along with a fee of 10,000 rupees is charged for enterprises or startups (proper certification of MSME or Startup India required). In case of a sole proprietorship, the fee is capped at 5000 INR. However, the application can also be made online for which a rebate of 10% is issued on the registration fee. The application made contains a list indicating the trademark, the goods/services it shall be recognized with and the name and address of the applicant and a power of attorney if the application is made through an agent. In most cases, if no objection is raised, a period of seven to ten months can be considered as effective waiting time for a trademark to be officially registered.

A trademark that has been registered is valid for a period of ten years from the date of registration. The registered trademark is subject to renewal every ten years through the TM-R form and must be submitted within a year before expiry. In case of failure to secure the application within the stipulated period, a surcharge must be paid along with the requisite fees for renewal.

A trademark is subject to removal if

• It has not been renewed even after six months has passed since the last date of applying for renewal of the registry
• It has not been used for a period of five years since its registry and no efforts were made to make an application by end of three months since the date of completion of the five years.

Major requirement for GI protection are that the product should be originated from a particular geographic area and its quality should be associated to their geographical area of origin.

Person who is a producer of goods can be an authorised user should be in respect of a geographical indication registration.

Any authorised user can use the registered geographical indications.

The registration for geographical indication is not compulsory but it is advised to take legal protection for the originated product.

9. What is infringement of registered geographical indication?

The term period for registered geographical indication is 10 years.

Trademark is a unique design or symbol that is used to identify the services or products of the company whileGeographical indication refers to an indication which identifies agricultural natural and manufactured goods.

Registered geographical indication belongs to the originator of the specific goods which is a public property so it shall not be a subject matter of licensing or transmitting to any other

No agent is required for the registration of geographical indication but it is advised to take help from IP lawyer

Yes, geographical indication can be renewed from time to time after the reach of 10 years and if it is not renewed it is liable to be removed from the register.

Industrial design is a 2D or 3D shape, configuration pattern or ornament of lines or colour or combination which are applied to any article by any industrial process or other means.

Industrial design protects new original designs by preventing others from making selling or importing articles having the registered design.

Any artisan, creator or originator of a design requires industrial design protection.

Various tools which can be protected through industrial design such as handicrafts, furnishing and household goods, jewellery, textiles, electronic devices etc

The industrial designs provide a lot of benefits to the owner by giving them the right to prevent others or any third party to making selling or importing the articles bearing the registered line and secondly it also increases sales of the product or the services which the owner is offering.

Procedure includes following steps.

Step1 – checking the availability of design

Step 2 – filling the application with specific details

Step 3 – scrutinizing the application at patent office and then a certificate of registration gets issued to the applicant.

Step 4 – the registered design then goes to theregister of designs which is maintained at the patent office in Kolkata.

Main purpose behind the registration of industrial design is to see that the artisans, maker or the originator of the design receives all the exclusive rights for their idea. It prevents a third party to use the originators real idea in their own merchandise.

It is the document maintained by the patent office Kolkata.Register of the design includes design number, class number,date of filing, name and address of the proprietor.

The right time for filing for industrial design protection is at the very beginning when the owner thinks about the design because anyone else could also come up with the same idea and they could use it for their application.

Industrial design only protects the appearance and not the technical of the functional features of a product while patent protects an invention or a process which is useful in the industry.

Patent office of India is the authority who grants permission for the registration for design in India.

The term period of industrial design in India is up to 10 years.

Registration of design after its term period can be extended.The initial period of registration may be extended by further period of 5 years and the owner of the design may also make any application for such extension even as soon as a design is registered.

An infringement of a registered design is said to be taken place when a third party without the consent of the owner uses, makes or imports their real design.

Yes, it is possible that the right of ownership can be transferred, it is done through any assignment or agreement which includes any terms and condition, but it should be in written

After the process of registration of industrial design takes place the patent office accepts the application and then issues a certificate of registration for the applicant.

Yes, it is possible to cancel the design anytime possible after the registration takes place.

The grounds on which cancellation can be done are:

Design should be registered in India previously.

The design should be of India.

The design should be old and not original.

It should not be registerable.