SCOPE OF RIGHT TO EXCLUDE

It is important to note that a patent does not grant the patent owner any
right to make their own invention. Rather, the patent gives the patent owner
the right to exclude others from making, using, selling, or importing the
invention. The patent holder's right to make their own invention is dependent
upon the rights of others and whatever general laws might be applicable.
Another party may own a patent that will prevent the patentee from utilizing
her/his own invention. In addition, government laws, such as antitrust laws or
FDA regulations, may restrict the ways in which a patent holder can utilize
her/his invention.
Since the essence of the right granted by a patent is the right to exclude
others from commercial exploitation of the invention, the patent holder is the
only one who may make, use, or sell the invention. Others may do so only
with the authorization of the patent holder. Such authorization is usually
given through a patent license agreement.
The rights granted under patent law are very different than rights granted
under copyright law. For example, under patent law it is irrelevant whether
the infringer independently developed the same invention--all that matters is
that the infringer is infringing at least one claim in the patent. In contrast,
copyright law prevents thecopying of the expression of ideas. Independent
creation of the same expression is not a violation of copyright law, because
no copying took place. Furthermore, copyright law does not protect ideas
themselves, only expression. As a result, copyright law does not prevent
someone from reading about a great idea in a copyrighted work, and then
using that idea themselves.

INFRINGEMENT
Infringement of a patent is the unauthorized making, using, selling, or
importing of the patented invention within the territory of the United States,
during the term of the patent. The scope of this right is governed by the
claims found in the issued patent. In most cases, a patent will issue with
multiple claims. Only one claim needs to be infringed in order for the entire
patent to be infringed.
If a patent is infringed, the patent holder may sue for relief in the appropriate
Federal court. The patent holder may ask the court for an injunction to
prevent the continued infringement and may also ask the court for an award
of damages. In such an infringement suit, the defendant may question the
validity of the patent, which is then decided by the court. The defendant may
also claim that its actions do not constitute infringement. As explained
above, infringement is determined by comparing the language of the patent
claims against the allegedly infringing device: if what the defendant is

making does not fall within the language of any of the claims of the patent,
there is no infringement.
Suits for infringement of patents follow the rules of procedure of the Federal
courts. From the decision of the district court, there is an appeal to the Court
of Appeals for the Federal Circuit. The Supreme Court may thereafter take a
case by writ of certiorari. If the United States Government infringes a patent,
the patent holder has a remedy for damages in the United States Claims
Court. The Government may use any patented invention without permission
of the patent holder, but the patent holder is entitled to obtain compensation
for the use by or for the Government

Rights and obligations of a patent owner .

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Rights of an applicant
The applicant or the owner of the invention has the following rights: 1. to be granted the patent, where the relevant requirements are fulfilled;
2. after the grant of the patent and within the limits defined below to preclude any person from exploiting the patented
invention in the manner referred to in section 53; and
3. to conclude licence contracts as provided for in the Act.
Obligations
The applicant or the owner of the invention has the following obligations 1. to disclose the invention in a clear and complete manner, and in particular to indicate at least one mode for
carrying out the invention, in accordance with the requirements, and subject to the sanctions, applicable under the
Act;
2. to give information concerning corresponding foreign applications and grants;
3. to pay fees to the Managing Director, as prescribed in the Act and the regulations, subject to the sanctions
provided for therein; and
4. in connection with licence contracts and contracts assigning patents or patent applications, to refrain from making
undesirable provisions referred to in section 69.
Rights of owner of a patent

The owner of the patent has the right to preclude any person from exploiting the protected invention by any of the
following acts 1. when the patent has been granted in respect of a product 1. making, importing, offering for sale, selling and using the product; or
2. stocking such product for the purposes of offering it for sale, selling or using the product;
2. when the patent has been granted in respect of a process 1. using the process, or doing any of the acts referred to in paragraph (1), in respect of a product obtained directly by
means of the process.
Enforcement of rights
The owner of a patent has the right 1. to obtain an injunction to restrain the performance or the likely performance, by any person without his
authorization, of any of the acts referred to above; and
2. to claim damages from any person who, having knowledge of the patent, performed any of the acts referred to
above, without the owners authorization.
3. to claim compensation from any person who, without his authorization, performed any of the inventions, claimed in
the published application, as if a patent had been granted for that invention; Provided that the said person, at the time
of the performance of the act, had 1. actual knowledge that the invention that he was using was the subject matter of a published application;
2. received written notice that the invention that he was using was the subject matter of a published application, such
application being identified in the said notice by its serial number.
Right of a prior user
A patent has no effect against any person (hereinafter referred to as the prior user) who, in good faith, for the
purposes of his enterprise or business, before the filing date or, where priority is claimed, the priority date of the
application on which the patent is granted, and within the territory where the patent produces its effect, was using the
invention or was making effective and serious preparations for such use; any such person has the right, for the
purposes of his enterprise or business, to continue such use or to use the invention as envisaged in such
preparations. The right of the prior user may only be transferred or devolve together with his enterprise or business,
or with that part of his enterprise or business in which the use or preparations for use have been made.
Scope of protection
The scope of protection is determined by the terms of the claims but the description and the drawings included in the
patent may be used to interpret the claims.
Limitation of rights

The rights under the patent extend only to acts done for industrial or commercial purposes and in particular not to
acts done for scientific research. The rights under the patent do not extend to acts in respect of articles which have
been put on the market in Kenya or in any other country or imported into Kenya. The limitation on the rights under a
patent above, extends to acts in respect of articles that are imported from a country where the articles were
legitimately put on the market. The rights under the patent do not extend to the use of articles on aircraft, land
vehicles or vessels of other countries, which temporarily or accidentally enter the airspace, territory, or waters of
Kenya. The rights under the patent are limited by the provisions of the terms of the patent. The rights under the
patent are limited by the provisions on compulsory licences for reasons of public interest or based on
interdependence of patents and by the provisions on State exploitation of patented inventions. The rights of the
patent do not extend variants or mutants of living forms or replicable living matter that is distinctively different from the
original for which patents were obtained where such mutants or variants are deserving of separate patents.

ABSTRACT:
A patent is one of the forms of intellectual property. The object of patent law is to encourage
scientific research, new technology and industrial progress. The grant of exclusive privilege
to own, use or sell the method or product patented for a limited period, stimulates new
inventions of commercial utility. The price of the grant of the monopoly is the disclosure of
the invention at the patent office, which after the expiry of the period of monopoly, passes
into public domain. An invention which must be new and useful. It must have novelty and
utility. The patents are granted to encourage inventions and to secure that the inventions
are worked in India on a commercial scale and to the fullest extent that is reasonable
practicable without undue delay. So true inventor required to know how to get patent in
india and other countries through his self or legal representative. Without patent no one
use, sell, and research on invention.This review looks into procedure to obtain patent in
india .

Procedure of Patent in India

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The Indian law of patents is enshrined in the Patents Act, 1970. The Act seeks to provide for
legal protection for inventions. The rights granted under the Act, are operative in the whole of
India.
The object of the patent law is to provides a statutory right to owner of the patent for a certain period
of time and disclose invention to use it and practice that invention and make it work thus encourage
scientific research and new technology, stimulate new inventions of commercial utility and pass
invention into public domain after the expiry of the fixed period of the monopoly.
Priority Claims
India is one of the countries party to the Paris Convention so the right of priority are applicable. The
applicant may within the six months apply for protection.
What is a Patent
A Patent is an exclusive monopoly granted to an inventor over his invention for a limited period of
time. It provides an enforceable legal right to prevent others from exploiting an invention.
Rights Conferred by Registration
Patent represents one of the powerful intellectual property rights. The registration of a patent confers
on the patentee the exclusive right to use, manufacture or sell his invention for the term of the
patent. It means that the invention cannot be commercially made, used, distributed or sold without
the patentee's consent. The patent rights can usually be enforced in a court of law.
Who Can Apply
Any person claiming to be the true and first inventor of the invention;
Any person being the assignee of the person claiming to be the true and first inventor in respect of
the right to make such an application;
Any legal representative of any deceased person who immediately before his death was entitled to
make such application Patent Search;
It is prudent to conduct searches as early as possible to avoid spending time and money re-inventing
a known matter. A patent is not granted to an invention if it is already available with the public either
in the form of published literature or common knowledge.
Patentable Inventions
To be patentable, an invention must, in general, satisfy certain criteria. The invention must be of
industrial applicability, must be new and must show an inventive step which could not be deduced by

a person reasonably skilled in the field. Above all, its subject matter must be accepted as
"patentable" under law. As for example, Inventions which are frivolous or claim anything contrary to
well established natural laws are not patentable. There are also other specific categories of
inventions which are declared as non-patentable.
Patent Specification
The process of patenting typically involves conducting prior art searches to distinguish the invention
and develop a description that illustrates the best method of working the invention. The description
of the invention is called specification. Depending upon the sufficiency of the description a
specification may be either provisional or complete Specification.
Provisional and Complete Specification
A provisional specification is often the first application filed in respect of an invention, and usually
contains only a brief description of the invention. It need not contain claims. Compared with the
provisional, the complete specification contains the full description of the invention, and the best
method of making the invention work. The complete specification comprises a title, field of invention,
the background of the invention, the description of the related art, drawbacks of the prior art, the
summary of the invention, the brief description of the figures, the detailed description of the preferred
embodiments, claims and abstract. Complete specification must be filed within 12 months from the
date of filing of the provisional specification.
Claims are the most important component in the patent specification as it is the legal operative part
which define and determine the legal protection sought for. The extent of patent protection for an
invention shall be determined by the terms of the claims. The description and the appended
drawings may be used to interpret the claims.
Filing and Prosecuting Patent Applications
The procedure for the grant of a patent starts with filing of the patent application along with the
prescribed fees at the patent office followed by filing of request for examination in the prescribed
format, after the publication of the application. The applications are examined substantively and a
first examination report stating the objections is communicated to the applicant. Application may be
amended in order to meet the objections. If the applicant does not comply with the objection, the
application will be abandoned. After complying off the requirements the application is published in
the Official Journal. At that time, opposition can be filed on limited grounds, but hearing is not
mandatory. Patent will be granted if the application is found to be in order. Then, the application and
other related documents will be open for public inspection. Thereafter, at any time after the grant but
before the expiry of a period of one year from the date of publication opposition on substantive
grounds is available. The whole process typically takes at least two years.
Duration of a Patent
The tenure for patents is 20 years from the date of filing of the application for the patent before the
patent office. It is the responsibility of the patentee to maintain an issued patent by paying the
annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the
public domain.

Restoration
Restoration of a patent that lapses due to non-payment of renewal fees can be made within one year
of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is
restored.
Information Required for Patent Registration
1. Name address of the applicant.
2. Complete Specification.
3. Drawing.
4. Request.
5. Abstract.
6. Power of Attorney.
7. Priority documents (if any).
There is no international or world patent. An inventor has to file an application in each country, where
he seeks to protect his invention. However, there are regional and/or International treaties to
facilitate the procedure to seek protection like Patent co-operation Treaty (PCT) or European Patent
Convention (EPC).
.

Procedure for patent registration in India

Step 1: Write down the invention (idea or concept) with as much details
as possible
Collect all the information about your invention such as:

Area of invention

Description of the invention what it does

How does it work

Advantages of the invention

Ideally, if you have worked on the invention during research and development
phase you should have something call lab record duly signed with date by you
and respective authority.

Step 2: include drawings, diagrams or sketches explaining working of

invention
The drawings and diagrams should be designed so as to explain the working of
the invention in better way with visual illustrations. They play an important role in
patent application.

Step 3: check whether the invention is patentable subject matter

All inventions may not be patentable, as per Indian patent act there are certain
inventions that are not patentable explained in detail in (inventions not
patentable)

Step 4: Patentability search

The next step would be finding out whether your invention meets all patentability
criteria as per Indian patent act? That is,

Novelty

Non-obviousness

Industrial application

Enabling

The detailed explanation for patentability criteria is given here (what are
patentability criterias)
The patentability opinion is provided by the patent professionals up on
conducting extensive search and forming patentability report.

Step 4: Decide whether to go ahead with patent

The patentability report and opinion helps you decide whether to go ahead with
the patent or not, chances are what you thought as novel might already been
patented or know to public in some form of information. Hence this reports saves
lots of time, efforts and cost of the inventor by helping him decide whether to go
ahead with the patent filing process or not.

Step 5: Draft (write) patent application

In case you are at very early stage in the research and development for your
invention, then you can go for provisional specification. It gives following benefits:

Secures filing date

12 months of time to file complete specification

Low cost

After filing provisional application, you secure the filing date which is very crucial
in patent world. You get 12 months of time to come up with the complete
specification, up on expiry of 12 months your patent application will be
abandoned.
When you complete the required documents and your research work is at level
where you can have prototype and experimental results to prove your inventive
step you can file complete specification with patent application.
Filing the provisional specification is the optional step, if you are at the stage
where you have complete information about your invention then you can directly
go for complete specification.

Step 6: Publication of the application

Up on filing the complete specification along with application for patent, the
application is published after 18 months of first filing.
An early publication request can be made along with prescribed fees if you do
not wish to wait till the expiry of 18 months from the date of filing for publishing
your patent application.
Generally the patent application is published within a month form request form
early publication.

Step 7: Request for examination

The patent application is examined only after receiving request for examination
that is RFE. Up on receiving this request the controller gives your patent
application to a patent examiner who examinees the patent application with
different patentability criteria like:

Patentable subject matter

Novelty

Non-obviousness

Inventive step

Industrial application

Enabling

The examiner creates a first examination report of the patent application upon
reviewing it for above terms.
This is called patent prosecution. Everything happening to patent application
before grant of patent is generally called as patent prosecution.
The first examination report submitted to controller by examiner generally
contains prior arts (existing documents before the date of filing) which are similar
to the claimed invention, and same is reported to patent applicant.

Step 8: respond to objections

Majority of patent applicants will receive some type of objections based on
examination report. The best thing to do it analyze the examination report with
patent professional (patent agent) and creating a response to the objections
raised in the examination report.
This is a chance for an inventor to communicate his novelty over prior arts found
in the examination report. The inventor and patent agent create and send a

response to the examination that tries to prove to controller that his invention is
indeed patentable and satisfies all patentability criterias.

Step 9: clearing all objections

This communication between controller and patent applicant is to ensure that all
objections raised in the patent application are resolved. (if not the patent will not
be granted ) and the inventor has his fair chance to prove his point and establish
novelty and inventive step over existing prior arts.
Up on finding the patent application in order of grant, it is grant to the patent
applicant as early as possible.

Step 10: Grant of patent

The application would be placed in order for grant once it is found to be meeting
all patentability requirements. The grant of patent is notified in the patent journal
which is published time to time.

The inventive step and non-obviousness reflect a general patentability requirement

present in most patent laws, according to which an invention should be sufficiently inventivei.e.,
non-obviousin order to be patented.[1] In other words, "[the] nonobviousness principle asks whether
the invention is an adequate distance beyond or above the state of the art."[2]
The expression "inventive step" is predominantly used in Europe, while the expression "nonobviousness" is predominantly used in United States patent law.[1] The expression "inventiveness" is
sometimes used as well.[3] Although the basic principle is roughly the same, the assessment of the
inventive step and non-obviousness varies from one country to another. For instance, the practice of
the European Patent Office (EPO) differs from the practice in the United Kingdom.