IP Intelligence
Patent Myths
Widely repeated beliefs about patents, and what the position actually is.
Showing 21 of 51.
“A clean prior art search means the patent will be granted.”
No search is exhaustive. Applications are unpublished for eighteen months, non-patent literature is poorly indexed, and examiners search differently from anyone else.
“My patent was granted, so I can sell my product safely.”
A patent is a right to stop others. It says nothing about whether you are free to sell. Somebody else may hold a broader right your product falls inside.
“A granted patent cannot be challenged.”
Section 13(4) says expressly that grant carries no warranty of validity. There are four routes to attack a granted Indian patent, and the most common one is a counterclaim in the case you started.
“You can get a worldwide patent.”
There is no such thing. Patents are national. A PCT application is a procedure that keeps options open; it is never granted.
“The twenty year term starts when the patent is granted.”
It runs from the filing date - or, for a PCT application designating India, from the international filing date. India has no term extension or adjustment.
“Patent deadlines can always be extended if you pay.”
Some can. Several of the most important cannot, or their extendability is unsettled - and an application that misses one is simply treated as abandoned or withdrawn.
“Any improvement to a known product can be patented.”
An improvement has to be more than a workshop change, and in chemistry and pharmaceuticals a new form of a known substance faces a further test under section 3(d).
“Anything an employee invents automatically belongs to the company.”
Indian law does not transfer patent rights by implication as freely as people assume. Rights flow from inventors, and moving them needs something in writing.
“A patent means nobody can use the technology at all.”
A patent stops others doing what the claims cover, in the country that granted it, for its term - subject to defences and statutory exceptions.
“An Indian patent protects me everywhere.”
Patents are territorial. An Indian patent has effect in India only. Manufacture and sale abroad are untouched by it.
“A patent is a one-time cost.”
Filing is the small part. Prosecution, foreign filings, national phases, renewals for up to twenty years and portfolio management are the large part.
“A patentability search tells me whether I can launch.”
They are different searches with different inputs and different outputs. Patentability reads disclosures anywhere in the world; freedom to operate reads claims that are in force where you sell.
“It was granted in another country, so India will grant it too.”
Each office applies its own law. Indian subject-matter law differs materially, particularly on business methods, methods of treatment and new forms of known substances.
“Renewal fees are collected automatically.”
Nothing is automatic. If a renewal is not paid within the period, or the six-month extension, the patent ceases to have effect.
“The working statement is optional paperwork.”
Furnishing information under section 146 is a statutory obligation on patentees and licensees, and failure or false information now attracts monetary penalties under an adjudication procedure.
“Nobody actually opposes patent applications.”
In several Indian industries opposition is routine. Publication makes your application visible to every competitor, and pre-grant opposition is open to any person.
“A higher patent count means a stronger IP position.”
Count is the least informative number about a portfolio. What matters is what a competitor cannot do without a licence.
“A divisional can be filed whenever I want.”
A divisional must be filed before the parent is granted. Once the parent is granted, the option is gone.
“Form 3 is routine paperwork with no consequences.”
Failure to disclose foreign filing particulars under section 8 is a ground of revocation under section 64(1)(m).
“Keeping it secret is always safer than patenting it.”
Trade secrecy gives no protection against independent invention or reverse engineering. Patents do - at the price of publication and a fixed term.
“Once my application is published, my position is locked in.”
Publication is when your competitors start reading it. The pre-grant opposition window opens, and your claims have not yet been examined.
Keep going.
Every explanation here links to the ones next to it. Follow the thread rather than the menu.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.