In a recently decided matter of Rolic AG et al vs The Controller General of Patents and The Assistant Controller of Patents and Designs in respect of a national phase patent application in India, in the First Examination Report (FER) the Indian Patent Office had raised objections including (i) invention as claimed lacked in novelty for instance see International Preliminary Examination Report and documents cited therein and (ii) invention as claimed lacked in inventive merit for instance see International Preliminary Examination Report and documents cited therein.
The Applicants filed their response to the Examination Report within the prescribed timeline and submitted documents with amended claims explaining the invention and clarifying how the invention under the amended claims were
The usual time limit for entering National Phase in INDIA based on a PCT International Application is Thirty One months form the priority date.However, it is not that all National Phase applications filed in India have to wait for Thirty One months from priority to be taken up for Examination.In case any Applicant desires to proceed faster with the examination of the National Phase in India for a faster grant, there is a special provision for filing an Express Request for Examination by paying additional fees alongwith the National Phase entry in India by filing of which the Indian Patent Office will initiate examination of the aplication in India without waiting for the Thirty One month timeline to be over.Thus there is definite provision for expediting the grant in India of the
Posted by: Anjan Sen in Untagged on
Jun 11, 2008
Any interested person is entitled to have information from the Controller in India concerning any pending application or a granted patent in India on any of the following: (i) as to when a complete specification following a provisional specification has been filed or when an application for patent has been deemed to have been abandoned; (ii) whether an Applicant/Patentee in India has complied with the requirement to keep the Controller in India informed on particulars of all corresponding applications outside India and their respective status till the grant in India. This information is important since failure to file such information can lead to refusal /revocation of granted patent; (iii) as to when publication of application has been made; (iv) as to when an application has been
Posted by: Anjan Sen in Untagged on
Jun 11, 2008
India,Designs,Industrial Designs
In a design case under consideration a design applied to glass sheet having eye catching shape, configuration, ornamental pattern ,get-up and colour shades was registered which was later challenged on grounds of lack of novelty and originality in the design. The basis for the challenge was the fact that the production of glass sheets of the design as registered would require rollers to impress the design on the glass sheets and that there has been evidence that such rollers for applying the relevant designs on glass sheets were made available before the impugned registration. A further ground of challenge to the registered design was based on glass design drawing of a prior registered design downloaded from the United Kingdom Patent Office site having date
Posted by: Anjan Sen in Untagged on
May 01, 2008
INFRINGEMENT OF PATENT IN INDIA-DEFENCE OF VARIANT MUST BE REAL AND ESSENTIAL TO THE FEATURES AND PURPOSES OF PLAINTIFFS PRODUCT OTHERWISE PLEAE FOR INJUNCTION AGAINST DEFENDANT VALID AT INTERLOCUTORY STAGE
A receny case of interest concerns a plea for interim injunction sought by Plaintiff against the Defendant who were found manufacturing and marketing IC engines with 3 valves and 2 spark plugs which according to the Plaintiffs was patented in India.The Plaintiffs were granted Indian patent in respect of application titled "Improved internal combustion engine working on four stroke principle called as "DTS-I Technology" providing a second spark plug in a small bore engine.
Respondents were found to put in the market motorcycles containing 4 stroke combustion engine which according to
Posted by: Anjan Sen in Untagged on
May 01, 2008
PATENTING OF COMPUTER CONTROLLED (SOFTWARE INTEGRATED) INVENTIONS IN INDIA
Article 27 of TRIPS provides that Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
Section 2(1)(j) of the Indian Patents Act,1970 defines an invention as "Invention" means a new product or process involving an inventive step and capable of industrial application. While Section 2(1)(ja) defines an "Inventive Step" meaning a feature that makes an invention not obvious to the person skilled in the art.
The specific exclusions from patentability under Section 3 of the Indian Patents Act which can be said to be relevant to software/computer inventions include:
Section
In a very interesting judgement in the matter of Zee Telefilms Ltd. & Anr Vs Asia Today Ltd. & Ors the High Court of Delhi has given an interim order directing the Registrar of Trademarks in India to restrain from processing pending applications pertaining to registration of the trademark "Zee" and also from advertising any further application which may be filed pertaining to the trademark "Zee". The petitioners Zee Telefilms had alleged that their mark "Zee" as well as logo "Zee" have been recognized in various decisions as having acquired a distinct secondary meaning and therefore they are entitled to a protection in respect of goods which are yet to be marketed by them. According to the Petitioners the Registrar in order to ascertain whether
Considering that the provisions of Section 11A (7) of the Indian Patents Act,1970 in India prescribes that on and from the date of publication of the application for patent and until the date of grant of a patent in respect of such an application, the applicant is entitled to like privileges and rights as if a patent for the invention had been granted on the date of publication of the application except the institution of the proceedin
can be done only after grant, it is important to watch the published applications through weekly Patent Journals and enter possible opposition to the grant if the application is found to entail wrongful grant of patent rights. Importantly, unlike post-grant opposition which can be filed only by a interested person a pre-grant opposition can be lodged
In a reported patent infringement case in India where the Plaintiffs sought to restrain the Defendants from the use of their patented PVC metallized films which according to the Plaintiffs (Patentees) involved a combination of components with desired thickness for appropriate results, the High Court of Delhi while considering the required inventive step in a patentable invention made the following observations. The use of PVC metallized films has been in existence for both pharmaceutical and food industry. There was enough material on record to substantiate the same. The Plaintiff appears to claim the invention in respect of the manner of use of the components. Thus the extent of metallization of PVC film to maintain translucency, thermoformability, metallized PVC films and the thickness of
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