Trade mark

Trade mark

A trade mark (popularly known as brand name in layman’s language) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another.

It is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise.

A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it or to authorize another to use the same in return for payment.

The period of protection varies, but a trade mark can be renewed indefinitely beyond the time limit on payment of additional fees.

INDUSTRIAL DESIGN

INDUSTRIAL DESIGN

Industrial design is a process of design applied to products that are to be manufactured through techniques of mass production.

Registration of industrial design

1.    Submit a duly filled in registration form with the prescribed fees along with four copies of the representation of the Design (of size 33cm x 25cm with suitable margins). The drawing should clearly depict the features of the design from all the views and it must state the view.

2.    The Application along with the required documents must be submitted to the Design Wing of the Patent Office in Kolkata or to any branch office of the Patent Office in Delhi, Mumbai or Chennai.

3.    On receipt of the application in the Patent Office, the Application is numbered, dated and taken up for examination. (Please note that unlike Patents there is no need to file a separate request for examination. Design Applications, once filed are automatically taken up for examination)

4.    If any defects are noticed in the Application, they are communicated to the Applicant or to his Agent.

5.    The defects must be corrected within a period of 6 months from the official date of Application.

6.    If the defects are not rectified, as required by the Controller a personal hearing is provided to the applicant. The Controller’s decision after the hearing is communicated in writing (stating reasons) to the Applicant or his Agent.

7.    The Applicant can appeal to the High Court (within 3 months from the date of the Controller’s decision)

Once accepted the Application is notified in the Patent Office Journal.

TYPES OF PATENTS

TYPES OF PATENTS

     A utility patent is what most people think of when they think about a patent. It is a long, technical document that teaches the public how to use a new machine, process, or system. The kinds of inventions protected by utility patents are defined by Congress. New technologies like genetic engineering and internet-delivered software are challenging the boundaries of what kinds of inventions can receive utility patent protection.

  

    A provisional patent goes hand in glove with a utility patent. United States law allows inventors to file a less formal document that proves the inventor was in possession of the invention and had adequately figured out how to make the invention work. Once that is on file, the invention is patent pending. If, however, the inventor fails to file a formal utility patent within a year from filing the provisional patent, he or she will lose this filing date. Any public disclosures made relying on that provisional patent application will now count as public disclosures to the United States Patent and Trademark Office (USPTO).

     A design patent protects an ornamental design on a useful item. The shape of a bottle or the design of a shoe, for example, can be protected by a design patent. The document itself is almost entirely made of pictures or drawings of the design on the useful item. Design patents are notoriously difficult to search simply because there are very few words used in a design patent. In recent years, software companies have used design patents to protect elements of user interfaces and even the shape of touchscreen devices.

            
           A plant patent is just that: a patent for a plant. Plant patents protect new kinds of plants 
           produced by cuttings or other nonsexual means. Plant patents generally do not cover                             genetically modified organisms and focus more on conventional horticulture.

Patent Agent.

Patent Agent.

The function of a patent agent are both technical and legal. The patent agent is therefore required to be qualified in science or engineering or technology and also the patent law through an examination conducted by the central government. Until 2005 advocates were permitted to apply for the patents on behalf of the client and also draft the specifications and claims in additions to practice and conduct the cases. Subsequent to the patent amendment act 2005, the following are the qualifications to register as a patent agent:

1.      Citizen of India

2.      21 years of age

3.      Graduate in science or Engineering or technology

4.      Should have passed the written examination conducted by the central government on patent law.

5.      Should have functioned as a controlled or examiner for atleast 10 year and should not be holding that post.

However patent agent inducting advocates who had registered prior to 2005 can continue to function as patent agent with the requisite renewal. The patent agents are required to apply for registration to the controller of the patents Kolkatta. Annual renewal with the prescribed fees is mandatory. On examination of the applications the controller shall grant the certificate of registration and publish the names of the patent agents in the gazette periodically and also maintain a register of patent agents.

Only individual are permitted to register as patent agent. A firm can act as a patent agent provided all the partners of the firm are registered patent agents. A company cannot register itself as a patent.

The patent agents can prepare the application for the patents draft the specifications and conduct the cases before the authorities without the attestation and signature of the paten agent patent. Application, specifications and claims shall not be received by the controller. The patent agent has to prepare all the documents and sign them. Certain document can be signed only by the patent agent, without the patent holders or investor’s signature.

The following documents must necessarily have signed by the applicant:

1.      Application for the patent

2.      Application for restoration of lapped patent

3.      Application for restoration of patent after the time allowed has expired.

4.      Application to amend

5.      Application for compulsory licenses or revocation

6.      Notice of surrender

The proceedings connected with the patent are legal and technical, Hence the patens agent should be convergent with both detailed discussions between the applicant and the patent agent on various aspects of the invention are necessary before drafting and filing. The applicant may not be competent or capable of drafting the claims in a legally acceptable form and hence the patent agent role is very crucial.

Also the time schedules under the patent law are many cases in spite of the discretionary powers of controller. Certain default have no remedy at all, also failure to attend the patent proceeding may result in ordinate delays and endanger. The grant of the patent” thus the patent agent should act with utmost case and responsibility any negligence mat cost the applicant. The degree of knowledge and care required by the patent agent are compared to those of a highly qualified person practicing with this high sense of duty and responsibility.

If the patent agent is found to be negligent in the use of his skill and experience or if he fails to exercise the necessary care and vigilance, he will be held liable for beach of duty towards his client.

            In cases where the patent agent fails to take precautions there by allowing the application to                lapse, the count may hold the negligent patent agent liable for damage.

Obligation or Duties of Patent holder

Obligation or Duties of Patent holder

1. The 1 st obligation is that the patent holder must work the patent.

2. The next obligation is to pay the renewal fees every year as per the due dates.

3. The 3 ^rd obligation is to report to the controller the progress regarding the working of the patent.

Renewal fees need not be paid for a period during which the patent is kept as a secret as per the direction of the controller of patents. If the patent holder fails to pay the renewal fees with in the due date as extension of 6 months is possible. If the renewal fee is not paid even within the extended period, the potent ceases from the date on which the renewal fees was due.

The consequences of failure to pay the renewal fees:

The patent ceases or lapses. An application for restoration can be filed within 1 year from the date when it lapsed with sufficient reasons for non-payment of renewal fees.

1. The restoration can be allowed by the controller of patent subject to certain conditions.

2. The second consequence is that the patent holder is not entitled to any infringement relief

between the date of lapsing of the patent and the publication of restoration in the gazette.

3. The third consequence the patent holder will not be entitled to claim any damages on account of profit between the time of lapsing and the date on which extension is granted by the controller. Lapsed and abandoned patents cannot be re-patented.

Compulsory licensing of patent

         

Compulsory licensing of patent

Compulsory licenses are generally defined as "authorizations permitting a third party to make, use, or sell a patented invention without the patent owner's consent."

Under Indian Patent Act, 1970, the provision with regard to compulsory licensing is specifically given under Chapter XVI. 

The conditions which need to be fulfilled in order for a compulsory licence to be granted are laid down under Sections 84 and 92 of the Act.

As per Section 84, any person who is interested or already the holder of the licence under the patent can make a request to the Controller for grant of Compulsory Licence on patent after three years from the date of grant of that patent on the existence of conditions mentioned in the Section 84 of the Patents Act, 1970.

While granting the compulsory licence, the Patent office will take into account few measures such as the nature of the invention, any measures already taken by the patentees or any licensee to make full use of the invention, ability of the applicant to work the invention to the public advantage and time elapsed since the grant of the patent i.e. worked or not worked.

At any time after the expiration of three years from the date of the grant of a patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely: —

(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

(b) that the patented invention is not available to the public at a reasonably affordable price,

(c) that the patented invention is not worked in the territory of India.

Rights of patent holder

Rights of patent holder

1. Right to exploit the invention- It is the right to use, sell, manufacture and distribute the patented item.
2. Right to assign and license- It is the right to grant the licence to others. If there are co-workers, then the owner can give the right to the co-worker for licensing.
3. Right to surrender the patent-The patent owner has the right to surrender his work with the consult of the controller. After the controller approves then it will be sent as a public advertise so that the people who are interested and working in the same area can apply for it.
4. Right before sealing – section 24 implies that the sealing begins at the date of notification to the date of acceptance. Right of the patent owner starts only after the date of acceptance.
5. Right to apply for the patent of addition: The owner has a right to apply an additional project to a patent during the processing of the before applied topic.
6. Right to make convention application- During the application of the patent, the owner can file the application directly by attaching the conventional application itself.
7. Right to put case against infringement – Owner has the right to file the case against the infringed persons.

MEANING OF PATENT

1. Patent is a grant for an invention by the Government to the inventor in exchange for full disclosure of the invention. A patent is an exclusive right granted by law to applicants / assignees to make use of and exploit their inventions for a limited period of time (generally 20 years from filing).
2. The patent holder has the legal right to exclude others from commercially exploiting his invention for the duration of this period.
3. In return for exclusive rights, the applicant is obliged to disclose the invention to the public in a manner that enables others, skilled in the art, to replicate the invention.
4. The patent system is designed to balance the interests of applicants / assignees (exclusive rights) and the interests of society (disclosure of invention).