According to section 6 of the Patents Act, 1970, an application for a patent may be made by the actual inventor of the invention, or are assignee of the right to make an application or a legal representative either.
It is the person who first applies for a patent is entitled to the grant a prior inventor of the invention who applies subsequently will not get the patent as against the first applicant.
A person who has merely communicated an idea to another, who actually gave practical shape to the idea and developed the invention, cannot claim to be the first and true inventor.
A mere financial partner, a firm or a corporation cannot be the sole applicant claiming to be the inventor, but they can apply as assignee of the right to apply. The right to apply for patent is assignable.
For establishing title to apply an assignment, in writing is preferable. An application to which the actual inventor is not a party is void and the irregularity cannot be cured by amendment.
The right to apply devolves to his legal representative on the death of the owner of the right. In the absence of special contract, the invention of a servant even though made in the employer’s time, and with the employer’s materials and at the expense of the employer, does not become the property of the employer. An employer can bring an action for an order that the patent should be assigned to him.
Procedure for applying for a patent:
Section 7 of the Act provides that an application for a patent, in the prescribed form along with the prescribed fee, accompanied by a provisional or complete specification, should be filed in the appropriate patent office.
The provisional specification need describe the invention briefly and need not contain the claims. A complete specification, while accompanied with an application, should be filed within twelve months from the date of filing the application, or else the application will be deemed to be abandoned.
It should disclose the best method of performing the invention known to the applicant and end with a claim or claims defining the scope of the invention for which protection is claimed.
The complete specification shall be accompanied by abstract technical information on the invention. The claims should be “Lac and succinct and should be fairly based on the matter disclosed in specification.
The specification should be accompanied by drawings there appropriate and necessary and should relate to single invention.
An application for a patent will not be open to public for a period of eighteen months from the date of filing or date of priority which is earlier. Thereafter the application will be published.
After the publication of the application within the prescribed period, a request for examination of the application should be made by the applicant or interested person failing which the application will be treated as withdrawn.
The application is examined by examiners of patents to see whether it complies with the requirements of the Act and the rules, whether there is any lawful ground of objection to the grant of the patent, whether the invention has already been published-or claimed by any other person.
After examination of the application, the patent office will communicate to the applicant, the objections, if any, to the grant of a patent. If there found objections and not met satisfactorily, the controller of patents, after giving opportunity of hearing to the applicant will refuse the application.
Where the applicant satisfactorily, has removed the official objections the Controller will accept and advertise it in the Official Gazette. From the date of acceptance to the date of grant of the patent the applicant will get the benefits of the grant except that he will not be entitled to institute infringement proceedings until the patent is granted.
Any person interested may give notice of opposition within three months from the date of publication in the official gazette and the controller will forward a copy of the notice of opposition to the applicant who may file a reply statement within one month from the date of receipt of the copy. Where the application is accepted without opposition of after opposition, a patent will be granted.
The term of every patent granted, the term of every patent which has not expired and has not ceased to have effect, after the commencement of the Patents [Amendment] Act, 2002, on the date of such commencement, shall be twenty years. The patent can be kept alive only by paying the renewal fee from time to time.