Patent : A Guide To Shielding Innovations



  1. Introduction 
  2. Understanding Intellectual Property Rights And Its Legal Framework
  3. What Is A Patent
  4. Types Of Patent
  5. Exploring Different Types Of Patent Applications
  6. Understanding The Criteria For Patentability In India
  7. Exclusions In Patentability
  8. Components Of A Patent Document
  9. Patent Application Examination Process: Timelines And Requirements
  10. Understanding Patent Infringement And Its Types
  11. Understanding Compulsory Licensing Under The Indian Patents Act, 1970
  12. Conclusion 


Intellectual Property Rights (IPR) encompass various forms, including patents. Despite common misconceptions, IPR isn’t limited to elite inventors, it extends to anyone who creates something original. Essentially, anything originating from one’s mind falls under intellectual property, with creators holding ownership rights termed as intellectual property rights. This concept, although sometimes perceived as complex, is fundamentally straightforward.

These rights, being intangible, mirror traditional property rights, granting owners an exclusive monopoly to benefit from their creations. Owners can choose to sell or retain their intellectual property, retaining sole authority to grant permission for its use.

Understanding Intellectual Property Rights And Its Legal Framework

Intellectual property law encompasses the regulation of Intellectual Property Rights (IPR), which are categorised into industrial property rights and copyrights. Examples of IPR include patents, trademarks, designs, integrated circuits, geographical indications, plant variety protection, trade secrets, traditional knowledge, and biodiversity. Copyrights cover authorship rights, artistic rights, film rights, transmission rights, performer rights, and more. Notably, trade secret protection such as data exclusivity is not recognized in India.

What Is A Patent 

A patent is a legal document issued by the government to the creator, granting exclusive rights to sell, manufacture, use, and import the invention for a specified period after its publication. This legal protection is crucial for innovators as it restricts others from selling their products without authorization. The term “patent” originates from old French, old Latin, and old English, with roots in “patentem” and “patente,” signifying an open letter, dating back to the late 13th century. By the 1580s, it evolved to denote a government-issued permit for creating and selling a specific product.

In business, patents play a vital role in the development, promotion, and sale of products, encompassing many items commonly purchased. Once a patent application is approved, it typically lasts for 20 years from the application date, granting the patent holder exclusive rights to commercialise the invention. Royalties, payments made to creators for product usage rights, are common in patent agreements, compensating inventors for their work. For instance, a television commercial producer may pay royalties to a songwriter for using their music in an advertisement. Companies often safeguard patents and royalty agreements through robust contracts and trade secrets until the product launch.

Types Of Patent 

Different types of patents cater to various types of inventions, offering legal protection to competent innovators for their discoveries:

  1. Utility Patent: Typically associated with the term “patent,” a utility patent extensively describes the functioning of a new device, method, or system, providing robust protection. Inventions like brooms, computers, business processes, and medicines fall under this category, with a duration of 20 years.
  2. Design Patent: This patent safeguards the ornamental aspects of a functional object, such as the appearance of a shoe or a bottle. It relies heavily on visual representations, making it challenging to search for. Software companies have utilised design patents to protect user interface elements and touchscreen designs. The design must be both functional and distinctive, with a duration of 15 years.
  3. Plant Patent: Covering novel plant varieties created through non-sexual methods like cuttings, plant patents exclude genetically modified species, focusing on traditional horticulture. These patents last for 20 years.
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Exploring Different Types Of Patent Applications

There are four distinct types of patent applications:

  1. Provisional Patent Application: This type of application is filed when the inventor is still refining their idea and wishes to secure a priority date while continuing to work on research and development. A provisional application can have claims or not and provides a 12-month window to submit a full patent application. Failure to do so within this timeframe results in the cancellation of the provisional application.
  2. Divisional Patent Application: If an application contains claims to multiple inventions, the applicant can divide the application into two or more applications, each focusing on a separate invention. A divisional application maintains the same priority date as the parent application and has a patent duration of 20 years from the filing of the main application.
  3. Additional Patent Application: This application is filed when the applicant makes improvements or modifications to the invention specified in the main application for which they have already applied for a patent. No separate renewal fee is required for a Patent of Addition, and its duration aligns with the primary patent.
  4. Complete Patent Application: This type of application includes a comprehensive specification detailing the invention and its implementation. It can be submitted immediately or within a year of the provisional patent application’s filing.

Understanding The Criteria For Patentability In India

For an innovation to qualify for a patent grant in India, it must meet specific criteria that assess its eligibility from various perspectives. These criteria are crucial in determining patentability, even though some standards may be relatively easier to fulfil than others. The three essential requisites for patentability are as follows:

  1. Novelty: An invention must demonstrate both innovation and inventiveness to be recognized under the Patents Act. Novelty essentially refers to the newness of a product or method compared to its state on the priority date of the patent application. To be deemed novel, an innovation must differ from existing prior art, which encompasses what already exists in the field. Novelty assessments do not combine references from prior art, instead each novelty evaluation is based on a specific prior art reference. However, general knowledge within the field, not explicitly mentioned in the reference, may be considered. Although the Patents Act does not define novelty, it plays a significant role in sections related to examination, anticipation, objection, and revocation.
  2. Inventive Step Criterion: Among the criteria for patentability, the inventive step criterion stands out as the most challenging to define. The Indian Patents Act outlines non-obviousness and technical advancement or economic relevance as two parameters for assessing inventive steps, as defined in Section 2(ja) of the Act. An inventor must contribute something creatively to the invention that a skilled artisan wouldn’t expect. For instance, if an innovator addresses a technological issue with a device, but another expert in the field suggests the same solution based on existing knowledge or instructions, the innovation may not be deemed original. The Supreme Court defined the term “inventive step” and this definition continues to guide inventive step analysis today.
  3. Industrial Application Criterion: According to Section 2(ac) of the Patents Act, an invention must have industrial application, meaning it can be used or created in an industry. This requirement underscores the necessity for an invention to be useful and applicable across various sectors. For a product to meet this criterion, it must be capable of consistent production and have at least one practical application in an industry. Procedures must also be employable by the industry, with clear and specific users rather than vague or uncertain ones. Commercial use is essential, although full commercial development need not be proven.
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Exclusions In Patentability

Sections 3 and 4 of the Indian Patent Act, 1970 outline what discoveries or methods are not patentable under the Act. 

Inventions or discoveries that go against public policy, exist naturally, or defy natural laws are not eligible for patents. Examples include devices for gambling, software facilitating hacking, medical treatments or methods, and inventions contradicting established natural laws, like a clock with unconventional time measurements. 

However, scientific theories or fundamental laws of nature, such as Isaac Newton’s law of gravity or Albert Einstein’s relativity formula, cannot be patented, as they are not inventions in the traditional sense.

Components Of A Patent Document

A patent document includes various sections such as the title, bibliography, description, prior art, abstract, detailed description of the invention, data, illustrations, and claims comprising both independent and dependent claims. Researchers, scientists, and academicians familiar with writing research articles often prepare their own complete or provisional specifications for patents.

Patent Application Examination Process: Timelines And Requirements

When filing a patent application for grant, it undergoes examination at the Patent Office within 48 months from the specified or filing date. Upon receiving the first examination report, typically within this timeframe, the applicant can address any concerns raised. Compliance with these conditions must occur within 6 months from the report’s release, although an extension of 3 months can be requested. Failure to meet these conditions within the nine-month timeframe results in the application being withdrawn. Once all objections are resolved and conditions met, the patent is granted and published in the Patent Office Journal.

Understanding Patent Infringement And Its Types

Patent infringement refers to the unauthorised use, production, sale, or offering for sale of a patented invention. It encompasses utility patents, design patents, and plant patents, each offering strong protection. The fundamental principle of patent infringement is that unauthorised parties cannot use inventions without the owner’s consent, leading to two types of infringement:

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Direct Patent Infringement: This is the most common form of patent infringement and occurs when the infringing invention is either disclosed or serves the same purpose as the patented invention. Direct infringement involves creating, using, offering for sale, or selling a patented invention without permission. Even if a product or service is not an exact replica but meets all criteria of a claim in the patented invention, it constitutes infringement. Generally, direct infringement occurs when a device similar to a patented invention is commercially advertised, sold, or used without the owner’s consent.

Indirect patent infringement comprises two distinct categories:

  1. Inducement Infringement: This occurs when a third party encourages another person to infringe a patent. Examples include leasing a patented innovation or selling components specifically designed for use with a patented device. Inducement can also involve providing instructions or guidance that lead to patent infringement. Unlike direct infringement, intentional infringement of the patent is not required for inducement infringement.
  2. Contributory Infringement: This type of infringement involves selling materials meant exclusively for use in a patented invention and lacking any other commercial purpose. While there are similarities with inducement infringement, contributory infringement requires a more direct connection to the infringement. Sellers must knowingly contribute to patent infringement, and their actions must directly contribute to an infringement.

Understanding Compulsory Licensing Under The Indian Patents Act, 1970

One of the significant provisions of the Indian Patents Act, 1970, is compulsory licensing, which allows interested individuals to apply for a patent licence under specific conditions. A compulsory licence can be sought from the Patent Controller after three years from the patent’s sealing, provided certain requirements are met. Unlike a voluntary licence, which is granted by the patent holder, a compulsory licence is requested by an interested party.

There are three justifications for seeking a compulsory licence, and it can be requested by any individual or entity, including individuals, fictitious entities, or businesses, after the three-year period following the patent’s grant.

Compulsory licensing can be granted based on three grounds. There must be a demonstrable demand, the patented item must not be legitimately in the public domain, and the patented invention is not being utilised within India.


Over the past two years, the Indian Patent Office has made efforts to ensure easy access to information regarding patent application status and granted patents. It is essential that all patented inventions adhere to patentability requirements. Patents can provide substantial value and increased profits for both individuals and businesses investing in new technology development.


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