FAQ on Patents in India
Patent law has become fairly standardized worldwide. Nevertheless, the patent law of every country has individual quirks that set it a degree apart from other countries. Patent law in India is highly developed and reasonably harmonized with the rest of the world, yet it exhibits certain unique features.
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The "First to File" System
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US patent law is based on the "first to invent" system, meaning that the first person to register a patent can have his patent revoked if someone else can prove that she invented it first. Indian patent law, by contrast, is based on the "first to file" system, meaning that patent protection in India is essentially a race to the patent office.
Exclusions
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Indian patent law excludes certain types of inventions from patent protection. The exclusions include agricultural and horticultural methods, many medical and biological treatment processes, and inventions related to atomic energy.
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Provisional vs. Complete Specifications
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Indian patent law allows (but does not require) the filing of provisional specifications and the filing of complete specifications within 12 months thereafter (three-month extensions are available). The intervening period is often used by patent applicants to produce a workable model or prototype of the invention. Provisional specifications are allowed to be far less complete than would be required in a country with a "first to invent" system. This feature is a consequence of India's "first to file" system. It is designed to allow an inventor to file a patent application as soon as possible after an invention is created, so that someone else does not beat him to the patent office.
Basic Standards
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The standards of patent protection under Indian patent law are essentially the same as in other countries; novelty, utility and non-obviousness. Novelty means that the invention must never have been invented before, regardless of whether the prior invention was ever patented or not. Utility means that the invention must be capable of manufacture and useful for at least one specific purpose; works created solely for aesthetic value are protected under copyright law rather than patent law. Non-obviousness means that the invention must incorporate some creative leap that would be less than obvious to someone familiar with the state of the art of the technology upon which the invention is based.
Patent Duration
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Indian patents endure for a period of 20 years after the filing date. Nevertheless, patent protection will be forfeited unless maintenance fees are paid every year. These fees cannot be simply paid in advance and then forgotten about, because they are subject to periodic readjustment.
"Evergreening" and HIV Drugs
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Indian patent law forbids the practice of "evergreening". This is a practice often used by large multinationals in which small changes are made to already-patented inventions just prior to the expiration of the original patent. A new patent application is then filed for the "new" invention for the purpose of extending patent protection. In 2009, the Indian Intellectual Property Office rejected two patent applications from a US manufacturer of HIV drugs on the basis of the "evergreening" objection. This will result in the expiration of the company's patents and the introduction of cheaper generic HIV drugs that more Indians can afford to buy.
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