HOW TO FILE A PATENT IN INDIA.
Author – Shruti Patekar and Prayank Khandelwal
Let’s start with, what is a Patent?
A Patent can be defined as a license granted to the inventor giving him/her exclusive rights over their invention. It is imperative for the invention to be a new method of doing something or providing technical solution to an already existing problem. The basic idea of patentability is to encourage inventors to invent by safeguarding their creations whilst also offering a possibility of material reward.
What can be Patented?
For an invention to be patentable, it must meet these three basic criterias-
- Novelty – The particular invention must be new and there should not be any existential trace of it.
- Inventiveness – The inventive step involves the invention to be a clear technical advancement which is not obvious to a person skilled in the art. Definition – a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art
- Industrial Application – The product must be practically useful and add value to a person’s life.
How to get a Patent in India?
The Office of the Controller General of Patents, Designs and Trade Marks generally known as the Indian Patent Office administers the Indian law of Patents, Designs and Trade Marks. The Indian Patents Act 1970, and The Indian Patent Rules, 2003 define all procedures regarding patentability of an invention. According to this Act, a patent application can be filed individually or jointly either by the inventor or his assignee or legal representative.
There are several steps involved while patenting an invention. The preliminary step being invention disclosure. This step involves describing the invention in great detail. For the invention to be patent protected in the best possible manner, it is recommended to submit each known fact about the invention without holding back anything. Next, a worldwide patentability search to know the novelty of the product is conducted. It is a very important step, because if the invention is found in any priorart then the novelty of the invention can be challenged by the Indian Patent Office (IPO). By performing an extensive search in the field of invention, the possibility of patent infringement can also be avoided. The inventor decides whether they want to proceed further with patenting or not, depending upon the patentability report, saving them time money and costs of filing.
Then comes the patent drafting and filing, where the actual patent process begins. This is a crucial step in the entire process. Drafting a patent is a highly skilled job and requires both technical and legal understanding. If not drafted the right way, it may not extend any valuable protection to the invention and may cost a heavy load. Depending on the jurisdiction of the applicant, an application can be filed at the Indian Patent head Office or its branches offices. On filing the application regular status checks are required in order to be granted a patent.
Provisional Application –
If an inventor is in the early stages of the invention, having clarity on the idea of his product but has not completely finished his experimentation, then filing a provisional application can be favorable. A provisional application is a transitory application and is temporary in nature. This application buys the applicant 12months of time for finalizing the invention accompanied by a detailed application, whilst also securing the filing date (filing dates play a crucial role in the IP world!). Filing for a provisional application is an optional step. If the applicant has everything in order, it is highly recommended to opt for a direct and complete patent application.
The complete application includes claims, abstract, background, summary, detailed description of the invention, figures, and the know-how of the invention. Upon filing the complete application, the patent is published about 18months after the first date of filing (priority date). To initiate the examination proceedings of the application, a request for examination is required to be filed with the Patent Office. The request can be filed within 48 months of the priority date. On reviewing the application, the examiner issues a First Examination Report (FER). The FER generally contains priorart (technical information that exists before the priority date) similar to the disclosed invention. The applicant has to comply with the examination results, and fulfill the requirements within a six-month from issuance of the FER. The applicant must defend his invention vis-à-vis the priorart cited in the FER. If the IPO decides to reject a patent application, the applicant can appeal against the decision of IPO to the Intellectual Property Appellate Board (IPAB). A successful patent grant is valid for 20 years, subject to renewal every year.
One can choose to apply for a patent all by themselves. But if an individual or a company is serious about protecting their intellectual property in the best possible manner, it is highly recommended to involve an Indian Patent Agent in every step.
What are the benefits of getting a patent?
The patent owner enjoys the freedom to exclusivity of their product, wherein competitors can be stopped from using, manufacturing, selling or importing the patented product without owner’s permission. The patent owner can decide to license or sell the patent to others, making extra revenue from the patent. According to, Section 68 of the Indian Patents Act 1970, a patent or a patent license can be mortgaged in times of crisis. Additionally, having a patent to your name increases the products monetary value and highers the profit margin which helps in merchandising and commercializing the product.
For all the readers out there, if you have any ideas or products, which you think are novel in nature, discuss them with us at Photon Legal. We guarantee to help you in the best possible manner by extending our Intellectual Property expertise.
Team Photon Legal
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