Withdrawal of Patents
Date : 09 Jan, 2020
Post By Nivedita Yadav
Intellectual property rights being a legal notion are right in intellectual property law for the creation of mind and innovations. These rights are generally categorized as non-physical rights which are an outcome of the original ideas and thoughts. The protections under intellectual property rights have a rich history and this history is fascinating. It can be traced way back to 500 BC when a Greek State named Sybaris, made it possible for the citizens to obtain a patent for “any new refinement in luxury.” Since then the laws have changed drastically but the intent of the law has remained the same, which is to protect the creativity of the inventor or the owner and at the same time provide benefit to the society. Intellectual property rights aim at stimulating the creativity of the human mind for the benefit of all by ensuring that the advantages derived from exploiting the concept, benefits the one who created it. BENEFITS OF INTELLECTUAL PROPERTY RIGHTS Intellectual property rights provide exclusive rights to the creator of intellect which covers legal privileges given to them for the work they have created. It gives a right to the creator to prevent third parties from using their creations without prior approval and at the same time, it also helps in the promotion and propagation of their creation. Intellectual Property rights could play a significant role in spurring innovations and technological developments. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time because they can then profit from them. This also gives economic incentive for their creation. Patent, an intellectual property grants an exclusive right to the inventor which excludes others from making, selling or importing the invention commercially for a specified time period. Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO member states for any invention, in all fields of technology, provided they involve an inventive step, are new, and are capable of industrial application. The basic object of the patent system is to promote technological and economic development and also encourage the spirit of innovation and creativity in a person. A patent can only be granted when the invention is novel, new and inventive but in Novartis v. Union of India & Others Supreme Court held that under Indian Patent Act for grant of pharmaceutical patents apart from proving the traditional tests of novelty, inventive step and application, there is a new test of enhanced therapeutic efficacy for claims that cover incremental changes to existing drugs. NOVELTY Novelty is an essential and absolute condition for patentability. An invention is considered 'novel' if it is not available in the public domain anywhere in India or around the world and is analysed using the present expertise in the relevant field of technology. Anything which is already publicly known cannot be patented as it would be futile to grant the economic benefits of a patent in relation to something that is already publicly known. INVENTIVE The term inventive refers to blatancy of the product, if the product is obvious to a person who is skilled in the field then that cannot be patented. Any product which cannot be easily perceived or is not self-evident can be patented under patent laws. UTILITY The term utility states that the product must be useful and not whether someone would buy it or not. It relates to, whether the invention is capable of being made in accordance with the claims and information in the patent. Provisional application This application is filed when the invention is not created and is still under the process of experimentation and this application is also known as temporary application. Convention application An application for patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries are called a convention application. Non-provisional application An application for patent filed in the Patent Office without claiming any priority of application made in a convention country or without any reference to any other application under process in the office is called an ordinary application. PCT application This application is governed by the Patent cooperation treaty and is an international treaty which is valid in up to 142 countries. This is the only international patent application which can be pursued for an invention in around 142 countries throughout the world. WITHDRAWAL OF PATENT APPLICATION An application presented at the patent office can be withdrawn by the applicant. - In case an applicant does not wish to publish the application then a request must be filed at the Indian patent office for the withdrawal of the application within 15 months of the date of priority or date of filing, whichever is earlier. - The patent application can also be withdrawn from the Indian patent office before issuance of the First Examination Report (FER) and can claim a refund of up to 90% of examination fees paid to Indian Patent Office. - The applicant who had filed a patent application in India can withdraw the application any time after filing but before the grant of a patent by submitting a request in a prescribed format. There are no fees for such a request. CONCLUSION India's new patent regime is still evolving, regardless of the complexities the founding principles of patentability must be maintained and a great deal remains to be clarified through implementation. The Indian Patent Office and Indian judiciary face a formidable learning curve in interpreting and applying the Patent Act's ambiguous patentability requirements. The published patents provide a great deal for further innovations. Patent continuously promotes competition because of the prohibited use for a specific period of time, by preventing access to the features of the invention it promotes healthy contest. Lawtendo associates with finest patent attorneys all over India. Get your patent application withdrawal done from the best patent lawyers in India. Connect with us @+91 96716 33666 or write to us at [email protected].
