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Sunday, October 26, 2008
THE DOCTRINE OF OBVIOUSNESS
Compulsary License for patents in India
PATENTIBILTY OF MICROORGANISMS IN INDIA
It is therefore advisable before proceeding to file a patent application in respect of Microorganisms and other biological material to ensure that the same is not hit by the provisions of the section 3(d) of the Indian Patent Act and the invention is not a mere discovery of what already exist in nature and in case of genetically modified variant of the Microorganism or other biological material the invention results in enhancing the efficacy of the already exiting strain of the Microorganism or other biological material.
YAHOO!’S YODEL FIRST SOUND MARK GRANTED IN INDIA
Software Patents India
Unlike many countries computes software still are not included in the definitions of patentable invention under Indian Patent Law. Though Indian Govt. in April 2005 brought an ordinance to include computer softwares imbedded in hardware like computer, mobile, televisions etc. and having industrial application under the definition of patentable invention by amending the clause (k) of section 3 under chapter II of Indian Patent Act, 1970 but under pressure of the software professional lobby did not enacted the same. The relevant provision under the Indian Patents Act reads as under:
CHAPTER II
INVENTIONS NOT PATENTABLE
3. What are not inventions.- the following are not inventions within the meaning of this act,--……
(k) a mathematical or business method or computer programe per se or algorithms;
But still a number of applications relating to inventions pertaining to the computer software are filed every year in India and by clever camouflaging of the words these applications are successfully proceeded to the stage of grant of patents.
Indian Patent law technically bars grant of patents pertaining to the inventions relating to computer softwares "per se", so if the invention is shown relating to a computer hardware or some form of generic hardware in embedded is patentable. All that is required that method claims should refer to a hardware component or there shall be inclusion of hardware or device in method claims. New Draft manual of Patents also allows invention relating to computer software if there is a hardware feature in embedded form to establish dependency of method steps on hardware device.
Though even after several rounds of discussions there is nothing concrete that is coming our from the meeting as regards to India's stand on computer software. There is still strong likelihood of Indian Government relenting to include the computer softwares under the category of patentable inventions as a large number of computer softwares now days are invented by the Indian software professionals, but at the same time there is lot of opposition from software programmers who are oppose to any sort of restriction to use on software programmes.
Stands of Software programmers can not be outrightly rejected by Government but at the same time it has to be understood that unless there would be any incentive from development in computer software that would also discourage further research and development in the field and would ultimately harm the industry itself. There has been suggestions to grant Patent to software programmes and reduced the period of grant at the same time, which could be win-win situation to both parties.
Further one by filing patent application in India in relation to software inventions can hope that in near future Indian Government enacts the desirable changes to grant patents to inventions pertaining to the computer softwares. Therefore anyone interested in filing a PCT application national phase or Convention application has to more careful at the time of filing original application for the first time in a foreign country. The language of specification as well as claims has to be accordingly modified at the time of filing of original application and there shall be sufficient dependency of software features on hardware components to make subject matter patentable in India.
GSK, EMR, Supreme Court and Novarits, saga is far from over
SALE PROMOTION OR LOTTERY
PCT FILING INDIA
All PCT Applications designating India are considered as Indian Patent Applications filed on the date of the International Application. The period for entering into national phase is 21 months if India is designated or 31 months if India is designated as well as elected; from the priority date.Following are the basic requirements for entry into National Phase in India:
(i) Application setting out the title of the invention, names, addresses and Nationality of the inventors; applicants.(ii) Complete specification a filed before the International office with claims, drawings and abstract.(iii) Prescribed Fees in cash/by local cheque /by demand draft.(iv) Translation of International Application if the Application is not filed in English.Once the national processing has started, the following documents may be furnished:
(i) assignment deed where the applicant is not the inventor, (ii) Declaration of inventorship by the Applicant,(iii) Statement and undertaking regarding corresponding Applications in other countries,(iv) Power of Attorney to agent (duly stamped),(v) Verification of translation,(vi) Copy of Priority document (if not already filed with International Bureau or if not filed in English),(vii) International Search Report(viii) International Preliminary Examination Report.
At the time of national phase entry, amendments to the International Application can be made, but such amendments cannot go beyond the disclosure made in the original Application. No extraneous or new matter is to be added.
It is possible to file a complete specification in respect of two or more provisional specifications if the invention disclosed in them is cognate or development of each other. However there would not any relaxation in payment of fees.
In case of PCT application request for early Examination may be filed any time prior to 31 months from the date of priority.
After a request for examination is filed, the Controller ordinarily assigns the Application to an Examiner within one month of request. The Examiner will examine the Application and issue an Official Report to the Controller ordinarily within one month but not exceeding three months. The Controller shall then communicate the report to the Applicant ordinarily within one month. An application is examined for the following matters:
(i) Novelty,
(ii) Obviousness,
(iii) Utility,
(iv) Patentability under the Patents Act, 1970 and as amended, and
(v) Anticipation.
The Applicant is provided 12 months' time to respond to the issues raised in the Examination report, which period is not extendible. Once objections are met, the application is accepted by the Controller and, thereafter, is advertised in the Official Gazette for opposition, if any to the grant.When the period for Opposition has expired or where the Opposition is decided in favor of the Applicant, the Patent will be granted in favor of the applicant. Once a patent is granted, it is valid for 20 years from its date of filing. It must be renewed every year by paying prescribed fee. After a Patent has been granted, articles manufactured under the patented invention may be represented as "Patented.'' The number of the Patent must be indicated on the product.
Amendments to Patent Law India
Use of registered marks on the Google Ads Program as keywords amounts to trademark infringement and constitutes passing-off: Delhi High Court
In the matter of Makemytrip India Private Limited vs Booking.com B. V. & Ors. , vide its order dated 27th April 2022, Justice Pratibh...
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