Patent of Addition – A Method of Patent Registration in India
An applicant can file a Patent of Addition for an improvement or modifications made on the invention disclosed in the complete specification. The term for a Patent of Addition shall not exceed the term of a daily patent, and shall not be granted prior to the date of grant of a patent for the main invention. A Patent of Addition cannot be questioned on the ground that the invention needs to have been the subject of an independent patent. If the improvement or modification is inventive in its own right then the Patent of Addition can be converted into a standard patent.
According to Indian Patents Act, 1970, Sections 54, 55, 56 deals with the Patent of Addition. The provisions are given below:
Section 54: Patents of addition
Wherever an application is created for a patent in respect of any improvement in or modification of an invention delineate or disclosed within the complete specification filed so (in this act named because the “main invention”) and also the somebody also applies or has applied for a patent for that invention or is that the artificer in respect thence, the Controller might, if the applicant so requests, grant the patent for the improvement or modification as a patent of addition. Subject to the provisions contained during this section, where an invention, being an improvement in or modification of another invention, is the subject of an independent patent and the patentee in respect to that patent is also the patentee in respect of the patent for the main invention, the Controller may, if the patentee so requests, by order, revoke the patent for the improvement or modification and grant to the patentee patent of addition in respect thereof, bearing the same date as the date of the patent so revoked. A patent shall not be granted as a patent of addition unless the date of filing of the application-was identical as or later than the date of filing of the appliance in respect of the most invention. A patent of addition shall not be granted before the grant of the patent for the most invention.
Section 55: Term of patents of addition
A patent of addition shall be granted for a term adequate to that of the patent for the most invention, close to abundant thence as has not invalid, and shall stay effective throughout that term or till the previous cesser of the patent for the most invention and no longer: as long as if the patent for the most invention is revoked below this Act, the court or, because the case could also be, the Controller, for the asking created to him by the artificer within the prescribed manner, could order that the patent of addition shall become associate freelance patent for the rest of the term for the patent for the most invention associated with that the patent shall continue effective as an freelance patent consequently. No renewal fees shall be collectable in respect of a patent of addition, but, if associate such patent becomes a freelance patent below sub-section (1) constant fees shall thenceforth be collectable, upon constant dates, as if the patent had been originally granted as associate freelance patent.
Section 56: Validity of patents of addition
The grant of a patent of addition shall not be refused, and a patent granted as a patent of addition shall not be revoked or nullified, on the bottom solely that the invention claimed within the complete specification doesn’t involve any creative step having relevance any publication or use of
- the most invention represented within the complete specification relating thereto; or
- Any improvement in or modification of the most invention represented within the complete specification of a patent of addition to the patent for the most invention or of associate application for such a patent of addition, and also the validity of a patent of addition shall not be questioned on the bottom that the invention have to be compelled to are the topic of associate freelance patent.
For the removal of doubts it’s herewith declared that in determinative the novelty of the invention claimed within the complete specification filed in pursuance of associate application for a patent of addition regard shall be had additionally to the entire specification within which the most invention is represented.
Priority date of associate application
The priority date refers to the date of fling-of the primary application. If 2 applications covering same or similar invention by 2 candidates then the patent are going to be granted to the one World Health Organization has initial filed the patent application. If the entire specification takes priority over provisionary specification then the priority date of the claim shall be the date on that complete specification was filed.
Application for patent to be initial filed in Republic of India by Indian residents
According to Section thirty-nine of the Indian Patent Act, 1970, a Republic of Indian resident cannot directly file a application in an exceedingly foreign country while not initial filing in India. it’s obligatory for him to get a far off Filing License (FFL) from Indian Patent and Trademark Office Database (IPO). Foreign Filing License (FFL) is written permission obtained from the mercantilism. If he needs to initial file AN application outside Republic of India he ought to take permission from the Controller by filing a call for participation on type twenty five in conjunction with a fee of Rs. 4,000. Once the FFL is granted, the mercantilism abandons the obligatory needs of initial filing and application in India and permitting Indian resident to straightaway file an application outside India for an invention. Several Indian corporations take into account foreign market, particularly America. The target of filing in foreign countries is once the invention holds low or no scope in India or the invention may be non-patentable subject in India.
Section thirty-nine of Indian Patent Act
No person resident in Republic of India shall, except underneath the authority of a written allow sought-after within the manner prescribed and granted by or on behalf of the Controller, create any application outside Republic of India for the grant of a patent for an invention unless;
i) An application for a patent for constant invention has been created in Republic of India, not but six weeks before the appliance outside India; and
ii) Either no direction has been given underneath sub-section (1) of section thirty five in relevancy the appliance in Republic of India, or all such directions are revoked.
The Controller shall eliminate each such application among such amount as is also prescribed, as long as if the invention has relevancy for defence purpose or energy, the Controller shall not grant allow while not the previous consent of the Central Government. This section shall not apply in relevancy AN invention that AN application for defense has initial been filed in an exceedingly country outside India by an individual resident outside India.
Section 45: Date of patent
The date of Patent is that the date of filing of the appliance. However, just in case of a per centum National section application, the date of filing is that the international filing dates. The time for payment of initial renewal fee is recognized from the date of recording within the register of patents. However, since the introduction of electronic process of patent applications, the date of recording is same because the date of generation of Certificate of Patents.
Rights of inventor
The inventor shall have the perquisite on his proprietary method or product so as to forestall third parties from the act of constructing, using, and providing purchasable, commerce or importation for those functions that product in Asian country. Section forty eight Subject to the opposite provisions contained during this Act and therefore the conditions lay out in section forty seven, a patent granted underneath this act shall confer upon the inventor. wherever the topic matter of the patent could be a product, the perquisite to forestall third parties, an agency don’t have his consent, from the act of constructing, using, providing purchasable, commerce or importation for those functions that product in India; wherever the topic matter of the patent could be a method, the perquisite to forestall third parties, an agency don’t have his consent, from the act of victimization that method, and from the act of victimization, providing purchasable, commerce or importation for those functions the merchandise obtained directly by that method in Asian country.
Examination of the application and rummage around for anticipation
Filing an application isn’t enough for a somebody to request the Indian office for the examining his application. A somebody must file asking for examining his application up to forty eight months from the filing date of the Indian application. so an application are going to be take into account for examination when asking for examination of the application has been created by the somebody, the application has been printed and an specific request for examination is filed inside thirty one months from the priority date.
Section 11B: Request for Examination (RFE)
No application for a patent shall be examined unless the human or the other interested person makes a call for participation within the prescribed manner for such examination at intervals the prescribed amount that is omitted by the Patents (Amendment) Act, 2005. just in case of associate degree application in respect of a claim for a patent filed below sub-section (2) of section five before the first day of Gregorian calendar month, 2005 a call for participation for its examination shall be created within the prescribed manner and at intervals the prescribed amount by the human or the other interested person. just in case the human or the other interested person doesn’t build a call for participation for examination of the appliance for a patent at intervals the amount as mere below segment (1) or sub-section (3), the appliance shall be treated as withdrawn by the human: Provided that- (i) the applicant could, at any time once filing the appliance however before the grant of a patent, withdraw the appliance by creating a call for participation within the prescribed manner, and (ii) in an exceedingly case wherever secrecy direction has been issued below section thirty five, the request for examination could also be created at intervals the prescribed amount from the date of revocation of the secrecy direction.
Section 12: Examination of application
When a call for participation for examination has been created in respect of associate degree application for a patent within the prescribed manner below sub-section (1) or sub- section (3) of section eleven B, the appliance associate degree specification and different documents connected to that shall be referred at the earliest by the Controller to an examiner for creating a report back to him in respect of the subsequent matters, namely:-
i) Whether the appliance and therefore the specification and different documents relating to that square measure in accordance with the necessities of this Act and of any rules created here under;
ii) Whether there’s any lawful ground of objection to the grant of the patent below this Act in pursuance or the application;
iii) The results of investigations created below section 13; and (d) the other matter which can be prescribed.
The examiner to whom the appliance and therefore the specification and different documents relating to that square measure referred below sub-section (1) shall normally build the report back to the Controller at intervals such amount as could also be prescribed.
Section 13: explore for anticipation by previous publication and by previous claim
The examiner to whom associate degree application for a patent is referred below section twelve shall build investigation for the aim of ascertaining whether or not the invention up to now as claimed in any claim of the whole specification.
i) Has been associate degree anticipated by publication before the date of filing of the applicant’s complete specification in any specification filed in pursuance of an application for a patent created in Asian nation and dated on or once the first day of Gregorian calendar month, 1912;
ii) Is claimed in any claim of the other complete specification printed on or once the date of filing of the applicant’s complete specification, being a specification covered in pursuance of associate degree application for a patent created in Asian nation and dated before or claiming the priority date prior that date.
The examiner shall, additionally, build such investigation for the aim of ascertaining whether or not the invention, up to now as claimed in any claim of the whole specification, has been anticipated by publication in Asian nation or elsewhere in any document apart from those mentioned in sub-section (1) before the date of filing of the applicant’s complete specification. wherever an entire specification is amended below the provisions of this Act before the grant of patent, the amended specification shall be examined and investigated in like manner because the original specification. The examination and investigations needed below section twelve and this section shall not be deemed in any thanks to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thence by reason of, or in reference to, any such examination or investigation or any report or different proceedings resultant on that.
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