Intellectual
Property Rights
Patents
Act, 1970
CHAPTER III: APPLICATIONS FOR PATENTS
6. Persons entitled to apply for patents
(1) Subject
to the provisions contained in section 134, an application for a patent
for an invention may be made by any of the following persons, that is
to say,-
(a) by
any person claiming to be the true and first investor of the invention;
(b) by
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;
(c) by
the legal representative of any deceased person who immediately before
his death was entitled to make such an application.
(2) An
application under sub-section (1) may be made by any of the persons referred
to therein either alone or jointly with any other person.
7. Form of application
(1) Every
application for a patent shall be for one invention only and shall be
made in the prescribed form and filed in the patent office.
(2) Where
the application is made by virtue of an assignment of the right to apply
for a patent for the invention, there shall be furnished with the application,
or within such period as may be prescribed after the filing of the application,
proof of the right to make the application.
(3) Every
application under this section shall state that the applicant is in possession
of the invention and shall name the owner claiming to be the true and
first inventor; and where the person so claiming is not the applicant
or one of the applicants, the application shall contain a declaration
that the applicant believes the person so named to be the true and first
inventor.
(4) Every
such application (not being a convention application) shall be accompanied
by a provisional or a complete specification.
8. Information and undertaking regarding foreign applications
(1) Where
an applicant for a patent under this Act is prosecuting either alone or
jointly with any other person an application for a patent in any country
outside India in respect of the same or substantially the same invention,
or where to his knowledge such an application is being prosecuted by some
person through whom he claims or by some person deriving title from him,
he shall file along with his application-
(a) a
statement setting out the name of the country where the application is
being prosecuted, the serial number and date of filing of the application
and such other particulars as may be prescribed; and
(b) an
undertaking that, up to the date of the acceptance of his complete specification
filed in India, he would keep the Controller informed in writing, from
time to time, of details of the nature referred to in clause (a) in respect
of every other application relating to the same or substantially the same
invention, if any, filed in any country outside India subsequently to
the filing of the statement referred to in the aforesaid clause, within
the prescribed time.
(2) The
Controller may also require the applicant to furnish, as far as may be
available to the applicant, details relating to the objections, if any,
taken to any such application as is referred to in sub-section (1) on
the ground that the invention is lacking in novelty or patentability,
the amendments effected in the specifications, the claims allowed in respect
thereof and such other particulars as he may require.
9. Provisional and complete specifications
(1) Where
an application for a patent (not being a convention application) is accompanied
by a provisional specification, a complete specification shall be filed
within twelve months from the date of filing of the application, and if
the complete specification is not so filed the application shall be deemed
to be abandoned:
PROVIDED
that the complete specification may be filed at any time after twelve
months but within fifteen months from the date aforesaid, if a request
to that effect is made to the Controller and the prescribed fee is paid
on or before the date on which the complete specification is filed.
(2) Where
two or more applications in the name of the same applicant are accompanied
by provisional specifications in respect of inventions which are cognate
or of which one is a modification of another and the Controller is of
opinion that the whole of such inventions are such as to constitute a
single invention and may properly be included in one patent, he may allow
one complete specification to be filed in respect of all such provisional
specifications.
(3) Where
an application for a patent (not being a convention application) is accompanied
by a specification purporting to be a complete specification, the Controller
may, if the applicant so requests at any time before the acceptance of
the specification, direct that such specification shall be treated for
the purposes of this Act as a provisional specification and proceed with
the application accordingly.
(4) Where
a complete specification has been filed in pursuance of an application
for a patent accompanied by a provisional specification or by a specification
treated by virtue of a direction under sub-section (3) as a provisional
specification, the Controller may, if the applicant so requests at any
time before the acceptance of the complete specification, cancel the provisional
specification and post-date the application to the date of filing of the
complete specification.
10. Contents of specifications
(1) Every
specification, whether provisional or complete, shall describe the invention
and shall begin with a title sufficiently indicating the subject-matter
to which the invention relates.
(2) Subject
to any rules that may be made in this behalf under this Act, drawings
may, and shall, if the Controller so requires, be supplied for the purposes
of any specification, whether complete or provisional; and any drawings
so supplied shall, unless the Controller otherwise directs, be deemed
to form part of the specification, and references in this Act to a specification
shall be construed accordingly.
(3) If,
in any particular case, the Controller considers that an application should
be further supplemented by a model or sample of anything illustrating
the invention or alleged to constitute an invention, such model or sample
as he may require shall be furnished before the acceptance of the application,
but such model or sample shall not be deemed to form part of the specification.
(4) Every
complete specification shall-
(a) fully
and particularly describe the invention and its operation or use and the
method by which it is to be performed;
(b) disclose
the best method of performing the invention which is known to the applicant
and for which he is entitled to claim protection; and
(c) end
with a claim or claims defining the scope of the invention for which protection
is claimed.
(5) The
claim or claims of a complete specification shall relate to a single invention,
shall be clear and succinct and shall be fairly based on the matter disclosed
in the specification and shall, in the case of an invention such as is
referred to in section 5, relate to a single method or process of manufacture.
(6) A
declaration as to the inventorship of the invention shall, in such cases
as may be prescribed be furnished in the prescribed form with the complete
specification or within such period as may be prescribed after the filing
of that specification.
(7) Subject
to the foregoing provisions of this section, a complete specification
filed after a provisional specification may include claims in respect
of developments of, or additions to the invention which was described
in the provisional specification, being developments or additions in respect
of which the applicant would be entitled under the provisions of section
6 to make a separate application for a patent.
11. Priority dates of claims of a complete specification
(1) There
shall be a priority date for each claim of a complete specification.
(2) Where
a complete specification is filed in pursuance of a single application
accompanied by-
(a) a
provisional specification; or
(b) a
specification which is treated by virtue of a direction under sub-section
(3) of section 9 as a provisional specification,and
the claim is fairly based on the matter disclosed in the specification
referred to in clause (a) or clause (b), the priority date of that claim
shall be the date of the filing of the relevant specification.
(3) Where
the complete specification is filed or proceeded with in pursuance of
two or more applications accompanied by such specifications as are mentioned
in sub-section (2) and the claim is fairly based on the matter disclosed-
(a) in
one of those specifications, the priority date of that claim shall be
the date of filing of the application accompanied by that specification;
(b) partly
in one and partly in another, the priority date of that claim shall be
the date of the filing of the application accompanied by the specification
of the later date.
(4) Where
the complete specification has been filed in pursuance of a further application
made by virtue of sub-section (1) of section 16 and the claim is fairly
based on the matter disclosed in any of the earlier specifications, provisional
or complete, as the case may be, the priority date of that claim shall
be the date of the filing of that specification in which the matter was
first disclosed.
(5) Where,
under the foregoing provisions of this section, any claim of a complete
specification would, but for the provisions of that sub-section, have
two or more priority dates, the priority date of that claim shall be the
earlier or earliest of those dates.
(6) In
any case to which sub-sections (2), (3), (4) and (5) do not apply, the
priority date of a claim shall, subject to the provisions of section 137,
be the date of filing of the complete specification.
(7) The
reference to the date of the filing of the application or of the complete
specification in this section shall, in cases where there has been a post-dating
under section 9 or section 17 or, as the case may be, an ante-dating under
section 16, be a reference to the date as so post-dated or ante-dated.
(8) A
claim in a complete specification of a patent shall not be invalid by
reason only of-
(a) the
publication or use of the invention so far as claimed in that claim on
or after the priority date of such claim; or
(b) the
grant of another patent which claims the invention, so far as claimed
in the first mentioned claim, in a claim of the same or a later priority
date.
|
