The difference between intellectual and real property is that real property has borders: it istangible, and you could ascertain its limits in time and space. Whereas, intellectual propertyrefers to creations of the mind: inventions; literary and artistic works; and symbols, namesand images used in commerce.A patent is an exclusive right granted for an invention (a product or a process) for a limitedperiod; generally 20 years. This is not necessarily an exclusive right to use the invention, butthe right to prevent others from using it without the owner’s consent.
A patent is enforceableonly in the country it is filed in – a patent filed in India would give the owner the right to usetheir invention within India in their particular sphere to the exclusion of others, and anyproduct that come out of this sphere can be claimed as a right.The history of patent law in India starts in 1911 when the Indian Patents and Designs Act,1911, was enacted. The present Patents Act, 1970, came into force in the year 1972. It hasbeen amended several times since. The act uses different types of definitions: some areself-explanatory, e.g. the word ‘India’ refers to the republic of India; some refer to anotherpart of the act, e.g.
the word ‘appellate board’ is defined in section 116; and some refer todifferent acts altogether, e.g. the word ‘small entity’ is defined in the Small and MediumEnterprises Act, 2006.When you file an application for the grant of a patent, the patent office first examines theapplication.
The office issues an examination report, and you are given an opportunity tomeet the objections raised in the report. Any interested party can raise opposition to thepatent. Such opposition is of two types: pre-grant (within six months of application) andpost-grant (within twelve months after the patent has been granted). Once the patent isgranted it needs to be renewed every year by paying the renewal fee. The patent expireswhen it reaches the end of its term.
It can also be revoked by the Appellate Board if it isdefeated in a lawsuit.The 2016 amendment to the Patents Act has introduced new rules regarding startups. Itdefines a startup as a corporation that has existed for five years or less; has a total turnoverless than Rs 25 crore; and is working toward innovation, development or commercialisationof new products. Hence to legally identify your corporation as a startup you would have toprove the above three conditions.
A startup is legally treated a bit differently to a regularcorporation. It is treated at par with an individual when filing corporation fees i.e. the lowestpayable scale.
It can also avail of fast-tracked international patent application whereas aregular corporation would have to file a separate international examination.The amendment also includes a few other changes: Patent applicants are now required tofurnish their mobile number and email addresses; all communications are doneelectronically; there are changes in the filing and refund of fees. There are changes insections regarding the publication of biological material where the request for publication ofyour material can be filed along with a reference to the material within three months of filingthe application.