The eligibility to file a patent application in India is that the person should be the true and first inventor of the invention or a legal representative or assignee of the true and first inventor. Section 6 of the Patents Act, 1970 provides the eligibility criteria for filing Patent Application in India.
Proof of Right is an important requirement for filing a patent application in India. In order to file the patent application in India, the requirement mentioned under Section 7 of the Act which is to submit the “Proof of Right” document should be duly met by the assignee of the true and first inventor. Also, the declaration mentioning the name of the inventor claiming to be the true and first inventor of the invention should be submitted.
Both Sections 6 and 7 of Patents Act, 1970 states that the person entitled to apply for a patent shall be considered the true and first inventor of the invention.
If two genuine inventors working independently and totally unaware of each other’s work and invent on the same concept, involving same technical advancements, proceeds with filing a patent application in India, where afterwards one of the inventors chooses to file a provisional patent application in India after the scope of invention is ascertainable and the other chooses to wait for some detailed results and files a patent application for a later date with complete specification and claims, then in such a scenario both the inventors are true and first inventor, nevertheless, one of them would be considered as the “first filer”.
The “first filer” would get an earlier priority over the subsequent filer. As stated in Section 13 of the Patents Act, 1970, the patent application filed first on the same invention concept gets the priority over the application filed thereafter.
In other words, when two inventors file their respective patent applications on the same inventive concept, as per Section 13 of the Act, the application filed first will get the priority and the subsequently filed application will be considered as anticipated even if the first filed application is not published by the Patent Office at the time of filing of the subsequent application.
“Wrongful obtaining” of the invention from the true and first inventor refers to a scenario wherein a true and first inventor who is deprived of his/her right to file the patent application by some other party who learned about the invention from the actual inventor, then this other party, upon learning about the invention from the actual inventor under confidentiality restraints, immediately would file the patent application in his own name.
Section 13 of the Patents Act, 1970 states that the person being the first filer would get priority and may get the rights over the patent wrongly appropriated in their name. In such a case the true and first inventor has the remedy under the law to oppose the patent application under Section 25 of the Act on the ground that the invention was “wrongfully obtained” from the true and first inventor.
In order to prove if the invention was wrongfully obtained from the true and first inventor, then complete data of research for the invention and other relevant evidence must be submitted to protect the rights in the invention of the true and first inventor.
However, in case any person “wrongfully obtains” an invention from the true and first inventor and manages to file first to wrongly register or wrongfully obtains a patent in his name, such persons can be checked under the relevant Patent Opposition and Patent Revocation provisions of the Act.
As stated in Section 6 of the Patents Act, 1970, the eligibility criteria to file a patent application in India, a person must be a true and first inventor of the invention.
The “Proof of Right” document under Section 7 of the Patents Act, 1970, must be submitted by the inventor to file a patent application in India.
Section 13 of the Patents Act, 1970 states that the application on the same invention filed first would get the priority over the application filed thereafter.
The true and first inventor has the right to oppose the patent application under Section 25 of the Act on the ground that the invention was “wrongfully obtained” from the true and first inventor.
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Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.
Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).
Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.
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