Patent Registration in India
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Patent Registration in India
Patent Filing is the first and most important thing for a Patent Grant in India. A new and novel invention is patentable if not disclosed to the public. We can help you do Prior Art Search in different jurisdictions, Drafting of Patent Specification, Filing and Prosecution of Ordinary Indian Applications or Under PCT
Meaning of Patent
Patentability Criteria
Prior Art Search
Patent Specification
Step Wise Process
List of Documents
Important Timeline
Patent RenewalMeaning of Patent & Type of Patent Application
A patent grants an exclusive right to the inventor/owner of the Invention done in the form of new goods or as new or improved Industrial Processes. Registration of patents in India is serious work requiring years of experience & sound technical knowledge of the subject matter. For grant of the patent, an application is filed for the Invention, which is new, novel & was not disclosed anywhere before filing it to the office of the controller of patents in India. The patent application is filed with a technical write up in the form of Patent Specification. One of the main criteria of patentability is its novelty & non-obviousness. There are three kinds of patent applications that may be filed. Here is the brief on the Type of Patent Application.
Ordinary Indian Patent Application: This is the most common application by an Indian Inventor. The Invention is disclosed for the first time before the Indian Patent Office and can be filed either with the provisional or complete specification. If the application is filed with the provisional specification, the complete specification must be filed within 12 months of the first application date.
Convention Application: The Paris convention, 1883, on patent the contracting countries have recognized the value of first disclosure of patent or “Prior Art”, and in case of international applications, an applicant can file a patent within 12 months of filing the first application, and the previous disclosure shall not be considered as prior art for the subsequent country application
PCT Application: The Patent Co-Operation Treaty provides for a mechanism wherein an international application for a grant of a patent can be filed from India for 152 contracting countries. In the first phase, the application is examined by the international examination authority of the applicant’s choice; after that, the applicant can file the national phase application.
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Call us at: +91 9899 600 605 or
Email us: info@setindiabiz.com
Patentability Criteria for the Patents
While granting a patent, a country gives exclusive rights of the invention to the patent holder within the territorial jurisdiction of that country. The patent is a negative right to exclude others from making, using, selling or dealing in the invented goods or industrial service. Every country has their set of laws to judge the invention for giving legal protection of the patent.
1
Novelty: An invention to be qualified for the grant of Patent must be new & novel. When we say novel, it means that the new product or the process should not have been already known on any document, granted Patent or published Patent, any literature, or knowledge in the public domain. The best method to check the novelty is to do a Patent Search, & we have the technical capability to conduct a high-quality patent search in all jurisdictions.
2
Inventive Step: The invention should result from some creative inputs or technical advancement over the existing knowledge or have economic advantages over earlier knowledge. It should be something not expected from a person skilled in the same art. When an inventor solves a problem through his invention, & another person can provide the exact solution using his acquired knowledge, it shall not be considered inventive.
3
Industrial Application: Section 2 (ac) of the Indian Patent Act clearly states that the invention must be capable of being used by way of its manufacture as goods or utilisation as an Industrial process. In other words, the invention should be abstract and with the practical utility to the industry.
4
Non Patentable Subject Matters: The subject matter of the invention should not be in the list of Non-Patentable Subject Matters as prescribed under Sections 3 and 4 of the Indian Patents Act. We advise you to check the statute for the complete list. Some of the examples are as under.
- Frivolous Invention
- Anything Contrary To The Natural Laws
- Mere Discovery
- Abstract Theory
- Discovery Of Living Or Non-Living Things
- Discovery Of New Form Of Known Substance
- Mere Admixture
- Mere Arrangement Or Re-Arrangement
- Method Of Horticulture
- Method Of Agriculture
- Surgical Process
- Mathematical/ Business Method
- Algorithm
- Computer Program Per Se
- Mere Scheme Or Rule
- Topology Of Integrated Circuit
- Literary Or Artistic Work
- Presentation Of Information
- Traditional Knowledge Or
- Invention Related With Atomic Energy
Prior Art Search for Patent Filing
The Prior Art Searches are conducted to find related documents or literature similar to the invention. By conducting Prior Art Searches of the patent, the inventor shall know whether the same or similar invention exists. Although a prior art search is not mandatory, for instance, if the patent application is being filed only for publicity or to use it in marketing activities of the enterprise with no intention to get the patent granted, the Prior Art Search is non-essential. However, if the invention is fundamental to the business or where significant resources have been used to research & develop the new product or process, the Prior Art Searches becomes a must thing. Similarly, the amount to be invested in the prior art also depends on the nature & purpose of patent filing.
A prior art search may be conducted in one or more databases of different jurisdictions with the object of finding the same or similar invention. The inventor may re-work his invention to make it novel and thus patentable. The prior art searches maybe involve the following.
- Short-listing of keywords
- An exhaustive search of databases
- Extensive Internet-based search
- Analysis and interpretation of search results
Drafting & Filing of Patent Specification
The patent specification is a techno-legal document that appears in the public search when the patent gets published. The examiner decides the patent application based on the patent specification and the claims; hence, it is the essential document in a patent application where the inventor explains all about the invention. The patent application may be filed in India with the provisional specification or with a complete specification. The application is deemed to be completely filed after filing the complete patent specification.
Provisional Specification of Patent: The Patent application is filed with Provisional Specification to claim priority date before the Patent Office. It is filed by the inventor where more time is required to perfect the invention. However, it has reached a stage where it can be disclosed. The provisional specification does not contain claims, and within 12 months of filing the provisional specification, the complete specification should be filed.
Complete Specification of Patent: The complete specification is a techno legal document, where the inventor discloses all details of the Invention along with the claims that the inventor has from the Invention. The complete specification must contain the following in the document.
- Title
- Field of Invention
- Background
- Summary
- Brief Description of Drawings
- Detailed Description
- Abstract
- Claim(s)
- Drawings
The Patent Specification is such an important tool; it may be used in favour of the patent applicant or against it; hence it should not be left to be designed or drafted by a layman. We have come across several cases where the inventor has prepared the specification without professional assistance & loses the patent itself. The specification needs to be drafted by keeping in mind the patenting process, using legal & technical terminologies, & complying with the provisions of patent law. We have domain expert lawyers & scientists to help in patent drafting.
Step-Wise Process for Patent Registration
List of Documents Required For Patent Filing in India
- Application in Form 1
- Patent Specification in Form 2
- Drawings With Description
- Abstract of Invention
- Claims of Patent
- Priority Document (Convention Application)
- Statement & Undertaking under Section 8 (Form 3)
- Declaration of Inventor-Ship (Form 5)
- Power of attorney (Form 26)
- Form 28 in case of MSME/ Startup
Timeline for Grant of Patent in India
The patent application is a stage-wise process as detailed in the step-wise process section; the patent may get published on an additional government fee. The applicant can also file for expedited examination of the patent to reduce the overall time required for the grant of the patent.
| S.No | Activity | Normal Route | Express Route |
|---|---|---|---|
| 1. | Novelty search: Prior Art Search is optional but highly recommended | 10 Days | 10 Days |
| 2. | Drafting of Patent Specification | 15 Days | 15 Days |
| 3. | Filing of Patent Application | 1 Day | 1 Day |
| 5. | Request for Examination | Within 48 Months of Application Filing | Along with Application |
| 6. | First Examination Report (FER) | More than 1 Years after the request for examination is filed | Within 6 Months of Application Filing |
| 7. | Response to FER or Opposition | File reply within 6 Months of issue of FER | File Reply ASAP if the issue of FER |
| 8. | Grant of Patent | Practically it takes 2-4 Years in Grant of Patent through Normal Route | Under Express Route Patent is Granted within 1-1.5 Years |
Renewal Fee for Patents in India
To keep a patent in force, a renewal fee has to be paid to the Indian patent office before the expiration of the second year for the advancing year. A patent is granted for a period of 20 years from the date of filing of the application and the International filing date in case of the PCT National phase application. The renewal fee is paid to the Indian patent office 3rd Year onwards in advance.
If the patent is granted later than two years from the date of filing of the application, the due fees have to be paid within three months from the date of recording of the patent in the register. If the patent is granted before the expiry of the two years from the date of filing of the application, the first renewal fee becomes due in respect of the third year, which has to be paid before the expiration of the second year. There is no separate form to be submitted for renewal. An applicant can directly pay the renewal fee by making a request to the patent controller.
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Frequently Asked Questions
A patent is an exclusive right conferred to the inventor or its authorized applicant for twenty years for its beneficial use.
Every invention is not patentable; sections 3 and 4 of the patent act lay down what is not patented. Apart from the objections of sections 3 and 4, the invention should also pass the novelty test and must be non-obvious or have inventive steps.
The priority date is critical; hence we suggest filing the patent ASAP. Delaying the patent filing is very risky for two reasons, firstly there is always a risk of someone else filing the same invention or a closely related invention. Secondly, there is a significant risk of leaking the invention before filing. Suppose the patent is incomplete or the inventor is still working on trials & ascertaining the claims. In that case, we recommend you file a patent with provisional specification & file the complete specification within 12 months of filing the patent application.
The patent registration confers upon the inventor/applicant exclusive rights with respect to the invention. The inventor can sell, license or do whatever it wishes for twenty years. The monetisation of a patent effectively is always an option for the patent holder. Following are the instant advantages of a patent.
- Patent grants exclusive right to commercially exploit the rights over an Invention
- The inventor can assign his rights in favour of another person against consideration
- A patent is considered favourably for recognition as STARTUP
- Exclude all others from using, selling, offering for sale your invention in your country
- Having patents help you in raising finance as investors attach considerable value to it
Prior art search is a process to find evidence if there is previous knowledge of the invention before the date of filing the patent application.
Provisional patent application filing means disclosing the preliminary details of the invention to the patent office. We strongly recommend filing a provisional application of Patent immediately after the invention is made so that even if it is leaked, it should not create prior art against the invention being applied. The provisional application must contain the maximum possible disclosure of the invention.
The Complete specification must disclose everything about the invention so that the examiner of the patent can decide the patentability. You may file a patent application with complete specification or provisional specification. However, when a patent application is filed in India with the provisional specification, the complete specification must be filed with drawings and claims of the invention within 12 months of the original filing. The final specification must be drafted so that a person of the same or similar skill must be able to make the goods or perform the industrial process after reading the specification.
The patent examiner examines the patent specification to check the patentability of a particular invention. The patent examination does not happen automatically, but the applicant has to move a separate application for examination of the patent at the time or after the filing of the complete specification. However, the request for examination of the patent must be filed within 48 months of making the first application.
The publication of the Patent is done upon request after the expiry of 18 months. However, an early publication request can be made to the patent office. So, that it is advertised within 1-2 months
A patent confers protection in the country’s territory where the patent is granted. As per the Paris Convention, the member countries can file the patent in another country within twelve months of the first filing date. Other countries shall respect the priority date as per the first filing
The international patent application may be filed in the following three ways. Direct Filing: The patent application may be filed directly to a patent office as an ordinary application; however, in case the inventor seeks to obtain a patent in different countries, then the patent application in all countries should be filed simultaneously. Convention Application: As per the Paris Convention, the inventor may apply in one or several countries within 12 months of first filing; the priority date shall be the first filing date. PCT Application: Under the PCT application, the patent application to several countries can be made from the country of origin. The biggest advantage is that the inventor of their own choice may select the International Examiner.
No, The applicant has to make a separate application in Form 18 to examine the Patent Application. Form 18 may be filed when filing the complete specification, where a request for early publication or after the Patent is advertised.
The patent renewal fee is payable after two years of application & for the third year & onwards to keep the Patent effective after its grant.
The patent filing in India is done with the controller of patents; it has four regional offices at Delhi, Mumbai, Chennai and Kolkata
Yes, with an additional fee, the inventor may request for an early publication in form 9. The additional fee payable will depend on the type of applicant.
No patent granted is valid within the territory of the granting country only. Hence the Patent granted by the Indian government is valid only in India.
