Patent and trademark advocate in Ulhasnagar

I, Mahesh Bhagnari, am the Managing Principal of the firm:

• I am an Attorney at Law with Bar Council Registration № MAH/1574/2003.
• I am licensed to practice at the Intellectual Property Office as a Patent lawyer in India and Design lawyer in India with Registration № IN PA 1108.
• I am licensed to practice as a Trademark lawyer in India with Registration № 10742.
• I have more than twenty years of professional experience working in the field of Intellectual property.

What is a Patent?

A patent in India gives you exclusive rights over your invention, allowing you to make, use, sell, or license it for profit. It’s a type of legal protection that ensures no one else can commercially exploit your invention without your permission.

To get a patent in India, your invention needs to be new, involve an inventive step, and be useful in an industry. Essentially, it should offer a fresh way of doing something or solve a technical problem in a new way.

Once granted, a patent in India is valid for 20 years. Like any other form of property, a patent can be sold, licensed, inherited, or even abandoned. It’s considered an intellectual property right, so you have a lot of control over how it’s used or transferred.

Who can file a patent application in India?

If you’re looking to file a patent application in India for an invention, it can be done by any of the following people, either on their own or together with someone else:

• The true and first inventor
• The assignee of the true and first inventor
• The legal representative of a deceased true and first inventor or their assignee

When you’re ready to file a patent application in India, here’s what you’ll need:

• The name, address, and nationality of each inventor and applicant.
• A copy of the Complete Specification, which should include claims, an abstract, and any relevant drawings.
• A verified English translation of the priority documents.
• A Power of Attorney signed by the applicant or an authorized person for each applicant.
• Proof of Right, which is a document that transfers the rights from the inventor to the applicants.
• Information about the status of any patent applications filed in other countries for the same invention.

To get a patent in India, your invention needs to meet a few key criteria. First, it should be practical and useful. It must also have something new about it—some feature that hasn’t been seen before in its technical field. This existing body of knowledge is known as “prior art.”

Your invention should also involve an inventive step, meaning it shouldn’t be something that a person with average knowledge in the field could easily figure out. Finally, the invention must be considered “patentable” under Indian law.

There are some things that typically can’t be patented, like scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, or methods for medical treatment (though medical products can be patented). Just because you have a patent doesn’t automatically mean you can use or sell your invention—other laws, like health and safety regulations, might still apply.

Under the Patents Act, 1970, there are certain inventions that can’t be patented. These include:

• Anything frivolous or against natural laws.
• Inventions that go against public order, morality, or are harmful to life or the environment.
• Discoveries of scientific principles or substances that exist naturally.
• New uses for known substances or processes that don’t result in a new product.
• Combinations of known substances that only result in the sum of their properties.
• Mere rearrangements or duplications of known devices.
• Methods of agriculture or horticulture.
• Medical treatments or procedures for humans or animals.
• Plants, animals, seeds, and biological processes.
• Mathematical methods, business methods, computer programs, or algorithms.
• Artistic creations, like literature, music, or films.
• Schemes, rules, or methods for performing mental acts or playing games.
• Presentations of information.
• Topographies of integrated circuits.
• Anything related to atomic energy.

Having a patent means others can’t commercially make, use, or sell your invention without your permission. If someone does infringe on your patent, you can enforce your rights in court. On the flip side, someone can challenge your patent in court, which could result in it being declared invalid.

As a patent owner, you have control over who can use your invention while it’s protected. You can license it to others or even sell your rights to someone else. Once the patent expires, typically after 20 years, your invention enters the public domain, meaning anyone can use it without needing your permission.

Patents encourage innovation by giving inventors recognition and an economic monopoly over their creations for a limited time. This protection drives continuous improvements in the quality of life.

The first step to securing a patent is applying for one. The application should clearly describe the invention, including its technical field, background, and details so that someone skilled in the field could replicate it. This description is usually supported by drawings, plans, or diagrams.

The application also includes “claims,” which outline the extent of the protection you’re seeking. The Patent Office will closely examine your application to ensure it doesn’t overlap with any prior art and that your claims are supported by the description. You’ll need to address any objections from the Patent Office to get your patent approved.

In India, patents are granted by the Intellectual Property Office of India. In other regions, like Europe or Africa, regional offices handle patent applications for multiple countries. The Patent Cooperation Treaty (PCT) allows you to file a single international patent application that’s effective in multiple countries, but each country still decides whether to grant the patent.

There’s no such thing as a “world patent.” You need to file in each country where you want protection, or in some cases, a regional office can handle it for you. The requirements and fees vary by country, so it’s a good idea to consult with an intellectual property lawyer.

It’s crucial to file your patent application before publicly disclosing your invention. If you disclose it first, it might be considered “prior art,” making it difficult or impossible to patent. Some countries offer a grace period, but this varies, so it’s important to understand the rules in the places where you seek protection.

If you must disclose your invention before filing, like to an investor, make sure to use a confidentiality agreement to protect your rights.

What is a Trademark?

A trademark is a recognizable sign, design, or expression that identifies and distinguishes products or services of a particular source from others. It can be a business name, a logo, a slogan, or even specific product packaging. Once a trademark is registered, the owner has the exclusive right to use it in connection with the goods or services it covers.

However, the process of registering a trademark is complex, and getting it wrong can lead to costly legal battles down the road. This is why enlisting the help of a trademark lawyer is not just advisable but often essential.

One of the main roles of a registered trademark lawyer in India is to navigate the legal intricacies of trademark law. While the process might seem straightforward—after all, you can file a trademark application online—the reality is far more nuanced.

A registered trademark lawyer in India is trained to conduct a comprehensive trademark search before you even submit an application. This search helps to identify any existing trademarks that could potentially conflict with yours. It’s important to remember that even a similar name, logo, or design could lead to your application being rejected by the trademark office. Attorneys understand how to analyze these search results and assess whether a trademark is too similar to another. This alone can save businesses from wasting time and money on an application that was doomed to fail.

Once a trademark lawyer has conducted a thorough search and confirmed that your trademark is likely to be accepted, they can assist you with the application itself. A well-prepared application can increase your chances of approval and ensure that your trademark is as broad and secure as possible.

For example, an lawyer can help determine the correct class of goods or services under which your trademark should be registered. Trademark law uses a classification system to group products and services into categories, and selecting the wrong class can weaken your protection or even lead to rejection.

Additionally, a registered trademark lawyer in India ensures that your application is free from technical errors that could delay the process. These small administrative details might not seem significant, but they can make a big difference in the speed and success of your trademark registration.

Once your application is filed, it enters a review period where others may object to your trademark. If another party claims that your mark is too similar to theirs, or that it could cause consumer confusion, they might file an opposition.

In these cases, having a registered trademark lawyer in India on your side is invaluable. Trademark opposition proceedings can be complicated and involve detailed legal arguments. Your lawyer will prepare and submit legal documents defending your application, and if necessary, represent you in hearings.

Without expert legal guidance, it’s easy to lose a trademark battle simply because you don’t know how to respond effectively to an opposition. A trademark lawyer knows the best strategies for arguing your case, greatly increasing your chances of retaining the rights to your mark.

Once your trademark is registered, it’s not enough to sit back and assume that no one will infringe upon it. Trademark lawyers also play a crucial role in monitoring and enforcing trademark rights.

Trademark infringement occurs when someone else uses a mark that’s identical or confusingly similar to yours in a way that causes confusion among consumers. In these situations, your lawyer can help by sending cease-and-desist letters, demanding that the infringer stop using the mark, and negotiating settlements if necessary.

If the infringement continues, your lawyer may also represent you in court, seeking legal remedies such as damages or an injunction to stop the infringing use. Trademark enforcement is essential for maintaining the value of your intellectual property, and a trademark lawyer will have the tools to protect your brand effectively.

If your business operates internationally, the role of a trademark lawyer becomes even more critical. Trademarks are territorial, meaning that registering a trademark in one country does not automatically give you protection in another.

Trademark lawyers can assist you in navigating the complexities of international trademark law. This often involves filing through systems like the Madrid Protocol, which allows businesses to seek trademark protection in multiple countries through a single application. However, each country has its own rules, and a trademark attorney ensures that your application complies with these different legal frameworks.

Additionally, if you plan to expand your business abroad, a trademark lawyer can help you develop a strategy to protect your brand in key international markets, ensuring that your intellectual property is shielded from infringement worldwide.

Trademarks aren’t a “set it and forget it” proposition. After a trademark is granted, it must be maintained. For example, in the U.S., you need to file a Section 8 Declaration between the fifth and sixth year after registration, and every 10 years, you need to renew the registration. A trademark lawyer can help ensure you meet all these deadlines, avoiding the risk of losing your rights due to missed filings.

In summary, a registered trademark lawyer in India provides invaluable guidance throughout the entire trademark lifecycle, from conducting initial searches and filing applications to defending your trademark in opposition proceedings and enforcing your rights. Their expertise ensures that your brand’s identity is protected, allowing you to focus on growing your business without fear of losing your intellectual property. Whether you’re a small startup or a global enterprise, investing in a trademark lawyer can save you time, money, and legal headaches down the line. exclusive legal rights on your trademark and accords better protection of your mark. It is the first step in establishing your own brand.

Written by Mahesh Bhagnari, Patent & Trademark lawyer in India.