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How Long Does a Patent Usually Last for in India

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

The patent is a universal concept, and every country has there own law that deals with patents.

Generally, the patent is applicable for only the country applied for. Patent Corporation Treaty provides a manner 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 Patent Corporation Treaty remains discretionary to the individual patent office to grant a patent. The patent being necessary for preventing inventions from being copied, it becomes compulsory to know how long a patent usually last?

Let’s get to know about the patent duration in India.

Patent in India

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

How long does a patent usually last in India?

India confirms the TRIPS agreement to establish laws for protection for inventors. Section 53 of the Patent Act provides the duration of the patent, and the duration is 20 years. The 20 years get calculated from filing a patent application with the Indian Patent Office.

Essentials of patent

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

  • Subject of patent

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

  • Novelty

    Novelty, in simple words, means 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. The invention should have a feature that is not obvious with the earlier inventions. Invention to be patented must be inventive and not obvious to be patented.

Rights of Patent Holder

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

    TRIPS agreement provide 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 by 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 gets enforced by the agent of the patent holder.

  3. Right to assign and license

    The patent holder can grant a license for the manufacturer and distribution of the patented product to others. The co-workers should grant permission when there is a co-owner of the patented product. The license is granted when the controller duly 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 getting the ownership of the patent can approach the controller.

  5. Right to apply for a patent for modification

    Section 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 comes out. 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, it becomes necessary to renew it regularly. It gets 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.

It’s essential to pay the renewal fee after the expiry of the 2nd year from the date of the patent grant. After the expiry of the 2nd year, the renewal fee is paid every succeeding year. There is no other fee for a modification, but if such moderation forms a new patent, the renewal fee is paid as required for the patent.

As per Indian Patent Act, for renewal of a patent, there is the provision of providing six months after the expiration of the time granted for renewal of patent. According to this, the patent gets 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, the patent ceases to exist and is passed on to the public domain. When the patent gets granted after two years of applying, the outstanding renewal fee gets paid within three months from the grant of the patent.

Restoration of Patent

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

The renewal fee must get 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 succeeding year, the said period extends by six months by requesting an extension of time.

The Patent Act provides provisions for restoring the lapsed patent. However, due to 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.

Where the patent is held by two or more person then upon the leave of the controller, anyone without joining the other may apply for restoration of the lapsed patent. The restoration application gets filed within eighteen months from the date the patent has ceased. Anyone can pay the renewal fee, but the legal representative compulsorily makes the application to restore the lapsed patent.

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

Utility Patent

Besides being a unique invention, a patent needs some utilities or industrial use. It covers the creation of a new or improved product, process or useful machine. Such Patent is for invention and prohibits other individuals or companies from making, using or selling the invention without authorisation.

Duration of Utility Patent

So, how long does a patent usually last? The maximum duration for which a utility patent last is 20 years. However, this requires the payment of maintenance fees. The maintenance fee gets 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
  • last at eleven and half years of issuing the patent.

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

Ending Patent Protection before the term expires

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

Some situations in which the grant gets 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 freely get used without paying the inventor’s royalties. The separate patent covers the improvement made in the invention under the public domain.

Rights after the Patent expires.

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

Provisional patent application

A provisional patent application is an inexpensive way to get 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 gives an extra year to run experiments. But this application comes with a cost. Also, a utility patent application that claims the benefit of the provisional patent application will expire a year earlier. So, how long a patent usually lasts should be calculated, keeping every aspect in mind.

Conclusion

Patents provide value to individuals and companies, and the patent holder comes with numerous rights to protect and promote their invention. How long a patent usually last is one such important question when it comes to patent. Generally, the patent period is 20 years in India, and the period is specifically 20 years. It requires the patent holder to pay the maintenance or renewal fee as required by the country’s laws.

FAQs

How long does a patent usually last in India?

The patent protection in India lasts for 20 years.

How long does a patent usually last in India?

The patent protection in India lasts for 20 years.

Is it required to pay a maintenance fee for the Patent renewal?

The patent needs to be renewed every year by paying a renewal or maintenance fee.

Is there any right after the expiration of the patent term?

After the expiry of the patent protection, the only right available to the patent holder is the right to continue bringing an infringement action.

About Author

Anshita Surana, born in the year 1999 in Guwahati, Assam and brought up in Hanumangarh, Rajasthan, where I completed my elementary and secondary education from the CBSE board.

Currently, Pursuing B.B.A.LL.B(H) from K. R. Mangalam University, Gurugram.