How to Find if My Idea is Already Patented?

How to Find if My Idea is Already Patented - Intellect Vidhya Solutions Bangalore

People frequently seek patent protection for their inventions. Patents safeguard inventions by giving its owners the exclusive rights to produce, utilize, and commercialize their inventions (i.e. the exclusive right to profit from their invention). To be patentable, an invention must be brand-new, practical, and inventive.

Is it Possible to Patent Ideas?

Patents could be issued for inventions that demonstrate an inventive step, do not fall under the legal category of inventions that are not patentable, and may be applied to a commercial environment. According to the decision in Hickton’s Patent Syndicate vs. Patents & Machine Improvements, if an idea or concept is new and practical, it is protected by a patent.

The Patents Act of 1970 makes no explicit reference of whether or not ideas can be patented. Since both invention and ideas originate from and are developed from concepts, they are quite similar. Therefore, an idea that is useful, distinct, novel, not evident to qualified experts, and has industrial value may be patented under the Patents Act of 1970.

If you have an idea for an invention, you should consider conducting a patent search to make sure someone else has not already invented your idea.

What is a patent search?

A patent search includes searching for previous art in the form of published patents, blog posts, journal papers, and other openly available information. You can decide whether your idea is novel, practical, and innovative and, thus, whether it qualifies for patentability by conducting a patent search. Your idea is not original and has already been invented if you discover prior art during your search that describes it. Additionally, you won’t be able to get a patent for your innovation. But if there are no prior arts found that describes your idea, you will be able to get a Patent for the innovation.

How to conduct patent search to make sure your idea is already not Patented?

The World Intellectual Property Organization (WIPO) specifies search parameters, including keywords, patent categorization, and applicant or inventor names, to help users to locate relevant patents.

Keyword search:

Performing a search using keywords can target existing patents that are similar to your invention idea. When performing a keyword search, WIPO recommends using Boolean operators, truncation, nesting, and phrases.

WIPO advises paying close attention to synonyms and numerous languages when doing a patent search. It’s vital to look for synonyms because there are numerous names that can be used to describe technology.

Patent classification search:

Classification systems organize patent documents into different technology groups. In comparison to a straightforward keyword search, searching by patent categorization can offer a more focused and limited search. The International Patent Classification (IPC) system is an illustration of a classification scheme. This method organizes technology into about 70 000 groupings and encompasses almost all technological domains.

Applicant or inventor name search:

You can also search for patents belonging to specific individuals or companies by searching their names.

The search can be performed using below resources:

  1. Google Search;
  2. PATENTSCOPE – managed by WIPO;
  3. Google Patents;
  4. Indian Patent website;
  5. United States Patent and Trademark Office (USPTO);
  6. Canadian Patents Database – managed by the Canadian Intellectual Property Office;
  7. Espacenet – managed by the European Patent Office (EPO).

Benefits of Patentability Searches:

  • Verifying the invention’s availability and calculating the potential range of protection.
  • The outcome of a patent search has a significant impact on the extent of a patent’s protection; if prior art exists that is similar to the current invention, the scope of protection would be limited.
  • The outcomes of the patentability search may serve as a starting point for calculating the applicant’s investment costs.

Share:

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on whatsapp
WhatsApp
Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp

Categories

Search

    Categories

    Recent Posts

    • All Post
    • Copyright
    • Design Patents
    • Patent Filing
    • Patent Search
    • Trademark

    Related Posts

    Food Plating and Copyright Protection in India

    Food plating — the positioning and presentation of food on a plate has matured into its own craft; showcasing chefs around the globe serving up more than just taste alone. In addition to aesthetics, it sets up your dining experience and reflect the brand identity of a restaurant. Chefs and restaurateurs have resorted to intellectual property (IP) law in different countries around the world, for protecting their unique forms of plating. But in India, copyright law does not allow for food plating to be protected easily: the same is because of two key reasons; firstly, food being highly perishable items and secondly primary purpose of using dishes as they serve a functional role. This article takes a closer look at the intersection of Indian copyright law and food plating, covering eligibility requirements and mechanisms for protection as well as some significant challenges. Copyright Eligibility for Food Plating in India Under the Copyright Act of 1957, copyright protection in India applies to original works of art, literature, music, and more. For a work to be eligible, it generally must meet two main requirements: However, Indian Copyright Law does not automatically deem the plating of food copyrightable. Chefs have no immediate legal protection for their plating, but by photographing it they can at least preserve the creative arrangement in a fixed medium. This approach means the copyright is granted to the photograph or video itself—not the plated arrangement—which still presents some limitations but can deter unauthorized reproduction of the image. Protecting Food Plating in India: Alternative Approaches Despite the challenges, several IP options could provide indirect protection for food plating in India: Key Challenges in Achieving Copyright Protection for Food Plating Even with these alternatives, protecting food plating remains challenging in India for several reasons: Practical Recommendations for  Chefs and Restaurateurs For chefs and restaurant owners in India interested in protecting their food plating styles, here are some practical steps that can help: Conclusion Food presentation does not enjoy copyright protection in India, as food is transient (disappearing after a meal), functional, and perishable. Although food plating does not fall under the traditional copyright regime, chefs or restaurateurs can explore other methods—such as photographic copyright, branding protections, contractual protections, and trade dress—to safeguard their culinary creations’ presentation. While these solutions provide some level of protection, they ultimately highlight the issue that, in the Indian legal context, food plating lacks force under copyright law. If chefs hope to protect their plating artistry in India, the key is to focus on brand-building and be inventive with alternative IP protections.

    Read More »
    November 11, 2024 No Comments
    The principle of 'Continuous Use' in Trademark Law - Intellect Vidhya

    The principle of ‘Continuous Use’ in Trademark Law

    While talking about Trademark law regime, the principle of ‘continuous use’ plays a crucial role in shaping the validity and enforceability of trademark rights. In India, similar to many other jurisdictions, one of the most known ways to establish the exclusive rights over a trademark is through continuous and consistent usage of the mark in commerce or in course of trade. Even if the formal registration is not granted, a trademark can still be protected based on its consistent use in the market. This article explores the principle of continuous use under Indian trademark law, its significance, and how it impacts the protection and enforcement of trademarks. What is the Principle of Continuous Use? The principle of continuous use in trademark law refers to the long and consistent use of a trademark by its owner in the course of trade in business. The continuous and uninterrupted use of the trademark assists in establishing the goodwill and reputation of the brand in the market. The older a trademark, the greater its reputation and goodwill. The Trademarks Act, 1999, acknowledges the importance of continuous use by offering protection to both registered and unregistered trademarks. The primary aim of this principle is to ensure that the rights over a trademark belong to the entity that has genuinely used the mark in commerce over time. The Legal Foundation of Continuous Use in India According to Indian trademark law, Section 34 of the Trademarks Act, 1999, addresses the principle of continuous use, highlighting the concept of “prior use.” This section states that a registered trademark owner cannot prevent any individual or business from continuing to use a mark if they have been using it consistently since before the trademark was registered. This provision is crucial as it emphasises use rather than registration. This means that even if a third party registers a trademark, the party that has been using the mark continuously for the longest time holds superior rights to it. Key Points of Section 34: Importance of Continuous Use 1. Establishing Priority Continuous use plays a crucial role in establishing priority over a trademark. If there is a conflict in rights, the trademark used earlier and without interruption has better rights to claim its use over that of the owner if it contrasts with the registered trademark holder. This is especially relevant in India, where the “first-to-use” principle precedes the common law concept of a “First-to-file”. 2. Preventing Abandonment This continuous use will prevent the trademark from being deemed abandoned. Failure to use a trademark without proper reason over an extended period may lead the authorities to declare it abandoned, and as such lose its rights. According to Indian trademark law, a mark needs to be used continuously in trade so as to retain its enforceability. Failure to do so can open the door for third parties to challenge the ownership of the trademark. 3. Reputation and Goodwill The longer you use a trademark, the more related goodwill and recognition will be gained that are important elements for every brand. A business expands sufficient identity allowing consumers to relate the brand with quality, trustworthiness or in a specific product or service. A trademark that has been used continuously over time under Indian law may qualify as a “well-known trademark” and receive additional protection, even in categories where it is not even directly used. 4. Protection for Unregistered Trademarks In the case of unregistered trademarks, continuous use is especially important. While unregistered marks are not protected under the Indian Trademarks Act, they may still be safeguarded by utilizing English common law rights called “passing off.” In as action of passing off, long time use would help the plaintiff establish that their mark has gathered good will and that the defendant’s use of a similar mark would likely deceive consumers and cause harm to their business. Proving Continuous Use Having continuous use and proving the same are two different things. Mentioned below are the kinds of documents that can be furnished in order to prove the continuous use of a particular trademark: Challenges to Continuous Use While continuous use is a strong principle in Indian trademark law, it does come with certain challenges: Relevant Case Laws The Supreme Court made clear that the rights of prior users are stronger than trademark registration. So just because a trademark is registered does not mean the original user of that domain cannot infringe on your rights. The court decided in Peps’ favour, indicating that a mark can still receive protection even if it is descriptive, provided it has acquired distinctiveness through ongoing use. Conclusion The principle of continuous use serves as a fundamental aspect of trademark law in India, offering protection to businesses that have consistently used their trademarks over the years, regardless of registration status. It ensures that the true owner of a trademark is the one who has consistently utilised it in commerce, rather than simply the one who registered it first. Indian trademark law seeks to promote fairness and preserve the goodwill that businesses build around their brands by emphasising use rather than formal registration. It is essential for both businesses and individuals to consistently use their trademarks in order to protect their rights and avoid potential legal conflicts.

    Read More »
    October 28, 2024 No Comments
    Work for Hire in the IP World Copyright and Patents - Intellect Vidhya

    Work for Hire in the IP World: Copyright and Patents

    When it comes to the creation of Intellectual property the concept of “work for hire” plays a pivotal role, especially in the domains of copyright and patent law. This legal principle determines who holds the ownership of intellectual property created in the course of employment or under a contractual agreement. While the idea of “work for hire” may seem straightforward, its implications can be complex and vary significantly between different types of IP, such as copyrights and patents. This article explores the concept of “work for hire” in the context of Indian law and how it affects ownership and rights related to copyright and patents. What is “Work for Hire”? The concept of “work for hire” refers to a situation where a person or entity, typically an employer or contractor, hires an individual (an employee or an independent contractor) to create a specific piece of intellectual property, and as a result, the ownership of the work is automatically assigned to the hiring party. In the Indian IP context, work for hire influences two major areas: 1. Copyrights (for creative works like writings, music, films, software, etc.) 2. Patents (for inventions and innovations). The way “work for hire” operates under Indian law differs slightly in each of these categories, and understanding these distinctions is crucial for creators, employers, and businesses alike. Work for Hire in Indian Copyright Law Legal Framework In India, copyright is governed by the Copyright Act, 1957. Under this Act, the principle of “work for hire” is enshrined in Section 17, which deals with the ownership of copyright. Generally, the author or creator of a work is the first owner of the copyright. However, there are exceptions to this rule, one of the most significant being works created under employment or commission, which are considered “works for hire.” Ownership of Copyright According to Section 17 of the Copyright Act, the employer or commissioning party will be the first owner of the copyright in the following cases: 1. In the Course of Employment: If a work is created by an employee in the course of their employment, the employer is deemed the first owner of the copyright, unless there is an agreement to the contrary.   2. Commissioned Work: If a work is created on commission for a specific purpose, the party commissioning the work will own the copyright unless there is an agreement to the contrary. In the case Khemraj Shrikrishnadass v. M/s Garg & Co., the court addressed the issue of copyright ownership concerning work for hire under Indian law. The court held that in the absence of a contract stating otherwise, when an author creates a work at the request of another party for remuneration, the copyright typically passes to the person who commissioned the work. This reinforces the general principle that unless an explicit contract exists, the employer or commissioner becomes the first owner of the copyright in such works created during employment or as commissioned assignments. Moral Rights Even though the employer or commissioning party owns the copyright, the creator still retains moral rights under Indian law, including the right to claim authorship and prevent modifications that could harm the creator’s reputation. Work for Hire in Indian Patent Law Legal Framework In India, patent rights are governed by the Patents Act, 1970. Unlike copyright, where the work-for-hire principle is relatively clear, patent law presents a more nuanced situation. Ownership of a patent typically depends on the terms of employment and whether the invention was created within the scope of the inventor’s duties. Ownership of Patents There is no automatic “work for hire” rule for patents in India as there is in copyright law. Instead, the inventor is considered the “first owner” of the patent and the ownership of inventions depends on the terms of the employment contract or a specific assignment agreement. This means that while an employee is the actual inventor, ownership of the patent can only be transferred to the employer through a written contract or agreement. Furthermore, there is always a separate debate about the inventions created by the employee during the course of employment and since the inventor (employee in this case) is the first owner of the patents the Employers are advised to always execute a assignment agreement in place. 1. In the Course of Employment: If an employee invents something as part of their job duties (e.g., researchers, engineers), the employer generally owns the patent subject to the assignment agreement. 2. Outside Employment Duties: If an employee invents something unrelated to their job description and outside the use of company resources, the employee may have the right to the patent. The case of Darius Rutton Kavasmaneck v. Gharda Chemicals Ltd. (2014) revolves around a dispute concerning intellectual property rights in the context of patent law and “work for hire.” The case involved the question of whether the inventions and patents developed by Kavasmaneck, a key employee of Gharda Chemicals, belonged to him individually or to the company. The court ruled in favor of Gharda Chemicals, affirming that the inventions created by Kavasmaneck during his tenure with the company fell under the “work for hire” doctrine, as they were made in the course of his employment and used the company’s resources. This case highlights the importance of employment agreements and the principle that inventions made by employees in the scope of their work duties are typically owned by the employer Comparing Copyright and Patent Work for Hire While the concept of work for hire is prevalent in both copyright and patent law, there are some key differences: 1. Automatic Ownership:    – In copyright, the employer or commissioner is typically the automatic owner unless there is an agreement to the contrary.    – In patent law, ownership depends on the employment context and the existence of a clear agreement, as the inventor is the first and original owner by default. 2.   Scope of Work:    – In   copyright, almost any work created within the course of employment may fall under work

    Read More »
    October 28, 2024 No Comments
    Copyright Protection for Sound Recordings - Intellect Vidhya

    Understanding Copyright for Sound Recordings

    Copyright for sound recordings is a vital aspect of intellectual property law, protecting the rights of creators and ensuring they maintain control over their work. Sound recordings, whether they are music tracks, podcasts, or other audio forms, are protected by copyright, granting the owner exclusive rights to reproduce, distribute, and publicly perform the work. This article will walk you through the basics of sound recording copyright: what it protects, how a traditional right has evolved into an increasingly important one in digital times and how digital distribution impacts your copyright rights. What is Copyright for Sound Recordings? Copyright for sound recordings refers to the legal protection granted to the specific performance or recording of a sound. This protection is separate from the copyright in the underlying musical composition or lyrics — it covers only the actual recorded sounds. For example, when an artist records a song, the sound recording copyright protects that particular recorded version while composition of music and lyrics are protected by means of their own copyright. Copyright owners of sound recordings have several exclusive rights, including: These rights allow creators to determine how their recordings can be used and for which they will receive royalties if others use the work. Duration of Copyright Protection for Sound Recordings The Copyright Act, 1957 of India governs protection duration for copyright in sound recordings. In India, sound recordings are protected for a period of 60 years from the beginning of the calendar year following the year in which such recording is published. This is also in line with the international framework that India has subscribed to, as a member of Berne Convention. As a result of this protection, sound recordings in India are given a standardised period of copyright that may be slightly different from other jurisdictions but one which generally ensures the robust protection to creative works. How Digital Distribution Impacts Your Copyright Rights? The digital environment has transformed the manner in which sound recordings are distributed and includes online platforms (e.g., streaming, downloads) and social media. This has led to many new opportunities for creators, and at the same time created more complications in copyright clearance. Digital distribution impacts your copyright rights in several ways: The Role of Collective Management Organizations (CMOs) Collective Management Organizations (CMOs), also known as Performing Rights Organizations (PROs), also have a major role in taking care of the Copyright for sound recordings. These organizations collect royalties on behalf of copyright owners when their recordings are played publicly, whether on the radio, in public spaces, or online. Joining a CMO gives creators protection in the form to get paid for using their recordings. They support the enforcement of copyright by monitoring usage, and acting against not authorised uses on behalf of their members Copyright Infringement and Remedies Copyright infringement occurs when someone uses a sound recording without permission, violating the copyright holder’s exclusive rights. Infringement can take many forms, including unauthorized copying, distribution, or public performance of the recording. When infringement occurs, copyright holders have several remedies available: Conclusion Sound recording copyright is an essential tool to defend the interests of its creators as it allows control and benefit their productions. With the evolution of digital distribution, it has become even more critical to understand how here-to-for basic principles affect your copyright rights. Keeping up to date about your entitlements, using copyright aids and working with CMOs will enable creators in their quest to protect against unauthorised use of sound recordings.

    Read More »
    August 28, 2024 No Comments