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					          AGARWAL AND COMPANY
             LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

  WHAT IS A PATENT
  A Patent is an exclusive monopoly granted to an inventor over his invention
  for a limited period of time. It provides an enforceable legal right to prevent
  others from exploiting an invention.


  RIGHTS CONFERRED BY REGISTRATION
  Patent represents one of the powerful intellectual property rights. The
  registration of a patent confers on the patentee the exclusive right to use,
  manufacture or sell his invention for the term of the patent. It means that the
  invention cannot be commercially made, used, distributed or sold without the
  patentee's consent. The patent rights can usually be enforced in a court of
  law.


  WHO CAN APPLY
  Any person claiming to be the true and first inventor of the invention;
  Any person being the assignee of the person claiming to be the true and first
  inventor in respect of the right to make such an application;
  Any legal representative of any deceased person who immediately before his
  death was entitled to make such application Patent Search;
  It is prudent to conduct searches as early as possible to avoid spending time
  and money re-inventing a known matter. A patent is not granted to an
  invention if it is already available with the public either in the form of published
  literature or common knowledge.


  PATENTABLE INVENTIONS
  To be patentable, an invention must, in general, satisfy certain criteria. The
  invention must be of industrial applicability, must be new and must show an
  inventive step which could not be deduced by a person reasonably skilled in
  the field. Above all, its subject matter must be accepted as "patentable" under
          AGARWAL AND COMPANY
             LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

  law. As for example, Inventions which are frivolous or claim anything contrary
  to well established natural laws are not patentable. There are also other
  specific categories of inventions which are declared as non-patentable.


  PATENT SPECIFICATION
  The process of patenting typically involves conducting prior art searches to
  distinguish the invention and develop a description that illustrates the best
  method of working the invention. The description of the invention is called
  specification. Depending upon the sufficiency of the description a specification
  may be either provisional or complete Specification.


  PROVISIONAL AND COMPLETE SPECIFICATION
  A provisional specification is often the first application filed in respect of an
  invention, and usually contains only a brief description of the invention. It need
  not contain claims. Compared with the provisional, the complete specification
  contains the full description of the invention, and the best method of making
  the invention work. The complete specification comprises a title, field of
  invention, the background of the invention, the description of the related art,
  drawbacks of the prior art, the summary of the invention, the brief description
  of the figures, the detailed description of the preferred embodiments, claims
  and abstract. Complete specification must be filed within 12 months from the
  date of filing of the provisional specification.


  Claims are the most important component in the patent specification as it is
  the legal operative part which define and determine the legal protection
  sought for. The extent of patent protection for an invention shall be
  determined by the terms of the claims. The description and the appended
  drawings may be used to interpret the claims.
          AGARWAL AND COMPANY
             LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

  FILING AND PROSECUTING PATENT APPLICATIONS
  The procedure for the grant of a patent starts with filing of the patent
  application along with the prescribed fees at the patent office followed by filing
  of request for examination in the prescribed format, after the publication of the
  application. The applications are examined substantively and a first
  examination report stating the objections is communicated to the applicant.
  Application may be amended in order to meet the objections. If the applicant
  does not comply with the objection, the application will be abandoned. After
  complying off the requirements the application is published in the Official
  Journal. At that time, opposition can be filed on limited grounds, but hearing is
  not mandatory. Patent will be granted if the application is found to be in order.
  Then, the application and other related documents will be open for public
  inspection. Thereafter, at any time after the grant but before the expiry of a
  period of one year from the date of publication opposition on substantive
  grounds is available. The whole process typically takes at least two years.


  DURATION OF A PATENT
  The tenure for patents is 20 years from the date of filing of the application for
  the patent before the patent office. It is the responsibility of the patentee to
  maintain an issued patent by paying the annuities until the patent expires.
  After 20 years term the invention claimed in the patent falls into the public
  domain.


  RESTORATION
  Restoration of a patent that lapses due to non-payment of renewal fees can
  be made within one year of lapse. However, certain limitations will be imposed
  on the rights of the patentee when the patent is restored.


  LIST OF INFORMATION REQUIRED FOR PATENT REGISTRATION
          AGARWAL AND COMPANY
             LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

     1.   Name address of the applicant.
     2.   Complete Specification.
     3.   Drawing.
     4.   Request.
     5.   Abstract.
     6.   Power of Attorney.
     7.   Priority documents (if any).


  There is no international or world patent. An inventor has to file an application
  in each country, where he seeks to protect his invention. However, there are
  regional and/or International treaties to facilitate the procedure to seek
  protection like Patent co-operation Treaty (PCT) or European Patent
  Convention (EPC).

  PATENT COOPERATION TREATY (PCT)


  Patent Laws differ from Country to Country and they are valid only in one
  country. For this reason there is no “World Patent” or “International Patents”.
  However there is an international filing system that is accessible in
  accordance with patent cooperation treaty (PCT) when an applicant files one
  of the member states of the PCT, this is legally equivalent to filing it with all
  PCT member states, which have been designated in the application. Patent
  right is granted only by the particular member country after entering the
  national phase in that country.


  On 7th December 1998, India acceded to the Paris Conventions for the
  Protection of Industrial Property and to the Patent Cooperation Treaty as 98 th
  contracting State, consequent of above in any International application for
          AGARWAL AND COMPANY
             LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

  Patent filed on or after 7th December, 1998, India could be designated and
  subsequently elected. Further national and resident of Indian have also
  become entitled to file international application for Patent under PCT.


  EXCLUSIVE MARKEING RIGHTS


  This provision has been incorporated in the patents Act, 1970 as amended by
  The patent (Amendment) Act, 1999 with effect from 1st January, 1995. Under
  this amendment to the Patent Act, 1970 it is now possible to make an
  application for patent claiming for a substance itself intended for use or
  capable of being used as Medicine or Drug, excepting the intermediate for the
  preparation of drug. However that India has the privilege, under World Trade
  Organisation (WTO) regime of a ten years transition period. Thus application
  for product claims for medicines or drug will not be processed until the end of
  2004. But Exclusive Marketing Rights (EMR) can be obtained for that
  application if certain conditions as stated below are fulfilled:




     1.   Where an invention has been made in India or outside India and before
          filing such a claim in India, application for the same invention claiming
          identical article or substance in a Convention Country (WTO)has been
          filed on or after 1st January, 1995 and a patent has been granted on &
          after the date of making a claim for article or substance in India and
          approval to sell or distribute has been obtained in the said Convention
          Country on the basis of the test done on or after 1st January, 1995.
         AGARWAL AND COMPANY
            LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

    2.   Where an invention has been made in India and before filing such a
         claim the applicant has made an application for patent on or after 1st
         January, 1995 for method or process of manufacturing the identical
         article or substance and patent has been granted in India on or after
         the date of making of the product claim.


    3. Marketing approval of the article or substance has been obtained from
         the appropriate authority in India provided that the application for
         patent has not been rejected by the Controller on the basis of the
         report of the Examiner that the invention is not an invention (Section-3)
         or the invention is an invention on which no patent can be granted
         (Section-4).


    4. There are two situations :-


            a. One, when invention is made in a country other than India, and
               second, when invention is made in India for which claim for
               patent for a substance had been made. In case of the first if the
               applicant has already filed an application for the same in a
               convention country and the patent or exclusive marketing right
               have been granted in that country, exclusive marketing rights
               could be granted in India also.


            b. These rights could be available from the date of approval
               granted by the controller till a period of 5 years or till the date of
        AGARWAL AND COMPANY
           LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

              grant of patent or the date of rejection of application for grant of
              patent, whichever is earlier.


       Duration


       EMR will be valid for a period of five years or till the date of grant of the
       patent or date of rejection of the application for patent whichever is
       earlier.


       Product Patent & Process Patent


       The Indian Patent Act, which deals inter alia with patentability of
       inventions where only methods or processes of manufacture relating to
       medicines, drugs stands amended. It has now been inserted which
       provides that a claim for patent of an invention for a substance itself
       intended for use, or capable of being used, as medicine or drug may be
       made. The manner how such claim is to be dealt with is provided in the
       newly inserted Chapter.


       The process of manufacture and product of manufacture are to
       independent subject matters. In a Product patent a new article is
       produced, while in a process patent no such article is produced, but the
       process is alternatively process of arriving at the same result which
       may be cheaper or better. It is enough that the process has a
       commercial application. If the process is to be used in the commercial
       activity, it is to be patented. It should be an activity in the field of
       AGARWAL AND COMPANY
          LAW OFFICES LLP.
                    Solicitors & Advocates
          Trademarks, Copyright & Patent Attorneys
          73, Ajanta Apartment, 36, I.P. Extension,
                 New Delhi – 110 092 INDIA
 +91 11 2273 2530, +91 11 2273 2540 Fax - +91 11 2272 1340
    contact@agarwalandco.com; www.agarwalandco.com

       commercial endeavor having commercial significance on that principal
       it is essential that a process must be improve


       In respect of inventions relating to substances produced by chemical
       process or substances as food or medicine, no claim for the substance
       itself is permitted. Only invention relating to method or process for their
       manufacture is patentable. One of the requirements of patentability of
       inventory its capability of industrial application. It must, therefore, be
       capable to take the practical form of an apparatus or device, a product
       or an industrial process or method of operation. It is the industrial
       process and not the chemical process which is patentable.




                AGARWAL & COMPANY LAW OFFICES LLP
                         Solicitors & Advocates
                      Corporate Legal Consultants
                 Trademark, Patent & Copyright Attorneys
                         73, Ajanta Apartment,
                            36, I.P. Extension
                      New Delhi – 110 0092 - INDIA
                        www.agarwalandco.com
                      contact@agarwalandco.com

				
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