text-align: justifyIndian Patent Law follows first to file system. Provisional specification describes the nature of the invention to have the priority date of filing of the application in which the inventive idea has been disclosed. It must be followed by complete specifications describing the details of the invention along with a statement of claims within 12 months from filing of the provisional application. If the complete specifications are not filed within the prescribed period, the application is treated as: ‘deemed to have been abandoned’.

Generally, an application filed with provisional specifications is known as provisional application which is useful in establishing a priority date for the invention. Moreover, the filing of a provisional application is useful as it gives sufficient time to the applicant to assess and evaluate the market potential of his invention before filing complete specifications. However, it is not necessary to file an application with provisional specifications and one can file an application directly with complete specifications.

Term of every patent in India is 20 years from the date of filing of patent application, irrespective of whether it is filed with provisional or complete specifications. In case of applications filed under PCT the term of 20 years begins from international filing date.

After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed. For the first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will cease. The patentee has a choice to pay the renewal fees every year or he can pay in lump sum as well. A request for restoration of patent can be filed within 18 months from the date of cessation of patent along with the prescribed fee. After receipt of the request the matter is notified in the official journal for further processing of the request.

A patent confers the exclusive right on the patentee to make, use, distribute, supply or sell the invention in India. An infringement would arise when any of these rights is violated. A patentee may assign or license any or all of these rights. The exercise of the rights so transferred in favor of the assignee or the licensee would not amount to infringement of the patent. Whether the act of a person other than the patentee amounts to infringement or not would depend upon: The extent of the monopoly rights conferred by the patent which is indicated in or implied from the specification and claims contained in the application of the patentee. Any action which falls outside the scope of the claims would not amounting to infringement. Whether he has infringed any of the monopoly rights in the patentee to make, distribute or sell the invention in India. The following would amount to infringement.: Colourable imitation of an invention. Immaterial variation in the invention. Mechanical equivalents. Taking essential features of the invention. The above often overlap when an infringement of a patent occurs. A colourable imitation or immaterial variation amounting to infringement occurs when an infringer makes slight modification in the process or product but, in fact, takes in essence the basic features of the patentee’s invention. Infringement by mechanical equivalents occurs when he uses mere substitutes for those features so as to get the same result as is obtained by the patentee for the same purpose. Whenever the monopoly rights of a patentee are violated, his rights are secured by the Patents Act through judicial process. The patentee has to institute a suit for infringement in the proper court having jurisdiction over the matter. The conduct of such a suit will be governed by the provisions of the Code of Civil Procedure and reliefs which may be granted in such a suit are Interlocutory/interim injunction. Damages or account of profits. Permanent injunction. An infringement action can be initiated only after the patent is granted. When a specification has been accepted and published i.e., during the period when opposition has been called and is being decided, the applicant cannot institute a suit for infringement, but damages sustained due to the infringement committed during the period i.e., between the date of publication of acceptance of complete specifications and the date of grant may be claimed in a separate suit. When the term of a patent has expired and infringement occurred during the term of the patent, a suit for infringement can be instituted even after the expiry of the term. The period of limitation for instituting a suit for infringement is three years from the date of infringement. Only the person who has a right in the patent can institute a suit for infringement. The following persons are entitled to sue: The patentee. The exclusive licensee if the license is registered A compulsory licensee when the patentee refuses or neglects to institute proceedings. A licensee other than the above two licensees can bring an action for infringement upon terms of the contract between the licensor and licensee. Assignee only after the application for registration of the assignment in his favor is filed. If a patent is assigned after the commencement action, the assignee is to be made a co-plaintiff.

Patent protection is a territorial right and therefore it is effective only within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for the same invention in convention countries, within or before the expiry of twelve months from the date of filing in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide. It is possible to file an international application known as a PCT application in India, in the Patent Offices located at Kolkata, Chennai, Mumbai and Delhi.

A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, the legal representative of any deceased person can also make an application for patent.

A patent application can be filed with Indian Patent Office either with complete specifications or with provisional specifications along with prescribed fee. In case the application is filed with provisional specifications, then one has to file complete specifications within 12 months from the date of filing of the application. There is no extension of time to file complete specifications after expiry of said period.

An invention to become patentable subject matter must meet the following criteria: 1. It should be novel. 2. It should have an inventive step or it must be non-obvious. 3. It should be capable of industrial application. 4. It should not fall within the non-patentable categories.

A patent specification can be prepared by the applicant himself or his registered and authorised agent. The patent specification generally comprises the title of the invention indicating its technical field, prior art, drawbacks in the prior art, the solution provided by the inventor to obviate the drawbacks of the prior art, a concise but sufficient description of the invention and its usefulness, drawings, if any and details of best method of its working. The complete specifications must contain at least one claim or statement of claims defining the scope of the invention for which protection is sought.