Duration of a Patent in India

A patent is a right given to an inventor by the Government. The right excludes other people from using, making, and selling an invention for a specific time. The word ‘patent’ is derived from the Latin word ‘patere’, which denotes ‘to lay open’ or to make available for inspection. The patent is the inventor’s right to invent useful, innovative, and non-obvious products.

Patents are issued globally, and every country has their own law to deal with patents.

Generally, the patent is applicable for only the country in which the patent is applied. The Patent Cooperation Treaty (PCT) provides a method to apply for International patents, and this treaty helps file a patent for a different country by a single application.

An application filed through the PCT remains discretionary to the individual patent office to grant a patent. The patent is necessary for preventing inventions from being copied, and understanding how long a patent last is important.

Let us understand the duration of the patent in India.

Patent in India

A patent is a temporary monopoly grant for the use of the invention. A patent gives a legal right to the holder of exclusivity over invention. In other words, the patent provides the right to exclude other people from using the invention. It is a statutory right granted by the government.

How long does a patent usually last in India?

India conforms to the TRIPS agreement to establish laws for protection for inventors. Section 53 of the Patent Act ensures the duration of the patent to be 20 years. The duration is calculated from filing a patent application with the Indian Patent Office.

Essentials of a patent

According to Indian Patent Law, certain criteria should be fulfilled to obtain a patent in India. The criteria are as follows:

• Subject of the patent

  The essential criteria to obtain a patent is for the invention to be a subject matter of the patent. An invention is a subject matter of the patent if it does not fall under exclusion under Sections 3 or 4 of the Patent Act, 1970.

• Novelty

  In simple words, novelty denotes newness, which is an essential element for an invention to be patented. As per Section 2(l) of the Patent Act, 1970, a new invention is not published in any document before the application’s filing date to obtain a patent.

• Industrial application

  An invention must be capable of being used in industry and have some practical use—something which is abstract cannot be patented.

• Non-obviousness

  An invention to be patented must not be obvious and should have a feature that is not obvious with earlier inventions. Invention to be patented must be inventive and not obvious to be patented.

Rights of the Patent Holder

1. Exclusive right according to Article 28 of the TRIPS agreement

   TRIPS agreement ensure the following rights:

   • When the patent is for a product, the patent prevents the third party from making, offering, selling, or importing the product.
   • When the patent is for a process, it prevents the third party from using the process and offering for sale, selling, or importing for these products if obtained using the process.
2. Right to exploit the patent

   The patent holder in India has the right to manufacture, use, sell and distribute the patented product. When the invention is in the production process, then the owner of the patent has the right to direct the procedure to another person. The right is enforced by the agent of the patent holder.

3. Right to assign and licence

   The patent holder can grant a licence for the manufacturer and distribution of the patented product to others. The co-workers should grant permission in case of a co-owner of the patented product. The licence is granted when the controller authorises the request.

4. Right to surrender the patent

   The owner can surrender the patent after seeking permission from the controller. The controller then advertises such surrender as per the procedure laid down in the Indian Patent Act. Parties interested in obtaining the ownership of the patent can approach the controller.

5. Right to apply for a patent for modification

   Sections 54 to 56 of the Indian Patent Act provides for modification in existing inventions. The patent holder is granted the modified invention after the notification of the acceptance. After presenting the notification, the owner has the same rights as the previous patent.

6. Right in case of infringement

   The violation of the patent holder’s rights is known as patent infringement. When the patented invention is used, manufactured, or sold for commercial purposes by any other person, the patentee can approach either the district or high court.

Renewal of Patent

On granting a patent to an invention, renewing the patent regularly is critical. This renewal is done by paying the patent renewal fees during the lifetime of a patent that is 20 years, and the payment is made at the Indian Patent Office before expiration.

Paying the renewal fee after the expiry of the second year from the date of the patent grant is critical. After the expiry of the second year, the renewal fee is paid every year. There is no other fee for a modification, but if such moderation forms a new patent, then the renewal fee is paid as required for the patent.

As per the Indian Patent Act, there is the provision of providing six months after the expiration of the time granted for the renewal of patent. The patent is then renewed by paying a penalty fee as required.

How long does a patent usually last for if the renewal fee is not paid? The renewal fee, if not paid within the extension period, results in the lapsing of the patent and is subsequently passed on to the public domain. When the patent is granted after 2 years of applying, the outstanding renewal fee is paid within 3 months on granting the patent.

Patent Restoration

A patent is granted for 20 years from the filing date, and the patent lapses on failure to pay the renewal fee within the prescribed time.

The renewal fee should be paid before the expiration date of the second year from the patent due date. After paying the subsequent patent renewal fee before the start of the next year, the period extends by 6 months by requesting an extension of time.

The Patent Act provides provisions for restoring the lapsed patent. However, because of the failure in payment of the renewal fee, the patent lapses. The patentee has the right to present the application of restoration for the lapsed patent restoration in the prescribed form.

In case the patent is held by two or more persons, then on the leave of the controller, any person without joining the other person may apply for restoration of the lapsed patent. The restoration application is filed within 18 months from the date the patent ceased. Any person can pay the renewal fee, but the legal representative should compulsorily apply to restore the lapsed patent.

When a request for the restoration of the patent is approved within the permitted time, the controller, after allotting the hearing date to the applicant, should be satisfied that the reason for failure to pay the renewal fee was unintentional. The controller subsequently publishes the application.

Utility Patent

Besides being a unique invention, a patent requires some utilities or industrial use. The patent covers the creation of a new or improved product, process, or useful machine. Such patents are for invention and prohibit other individuals or companies from making, using, or selling the invention without authorisation.

Duration of Utility Patent

How long does a patent usually last? The maximum duration for which a utility patent lasts is 20 years. However, this duration requires the payment of maintenance fees. The maintenance fee is paid in three parts.

• The first payment is due in three and half years of issuing of the patent;
• The second payment is due after seven and half years; and
• At eleven and half years of issuing the patent.

A patent can expire before 20 years if the maintenance fee remains unpaid.

Ending Patent Protection Before Term Expiry

Generally, the standard duration for the patent is 20 years, and the duration may vary as per the situation.

Some situations in which the grant is terminated are as follows:

• If the patent is found invalid after the grant, then the patent protection ends as soon as the patent is found invalid.
• Misconduct by the applicant of the patent.
• Doing illegal action while using the patent.

The patent may also expire before the expiry of 20 years when the patent owner does not pay the maintenance fees.

An expired or terminated invention falls in the public domain, which can be freely be used without paying the inventor’s royalties. The separate patent covers the improvement in the invention under the public domain.

Rights After Patent Expiry

The right to bring infringement action occurred within the patent life remains after the patent expires. The limitation extends to a certain period after the limitation extends and for a certain period after the patent expires.

Provisional patent application

A provisional patent application is an inexpensive method to obtain the informal application on records. There are two filing dates available on filing a provisional application before the date of filing a utility patent application.

The duration of a provisional patent application is one year, and the provisional patent application provides an additional year to run experiments. However, this application is expensive. Furthermore, a utility patent application claiming the benefit of the provisional patent application will expire a year earlier. So, how long a patent usually lasts is critical.

Conclusion

Patents are highly valuable to individuals and companies, and the patent holder comes with numerous rights to protect and promote their invention. How long a patent usually lasts is one such important question when it comes to patents. Generally, the patent period is 20 years in India. The patent holder is required to pay the maintenance or renewal fee as required by the laws of the country.