File A Patent in India

A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention.

Patent is a part of Intellectual property rights and guided by Indian Patent Act, 1970 (till 2014 amendment). A procedure to file a patent in India is below mentioned:

File a Patent Directly in Indian Patent Office:

An individual, a company including a start-up, a SME or a large entity and an education institution is eligible to file a patent directly for their inventions in the patent office if the invention is novel in nature, involves inventive step and has industrial application. A direct patent application of the patent is achieved through one of the below mentioned steps:

  1. Physical visitation in Patent office – The applicant (an inventor or a company can be regarded as patent patent applicant) will need to prepare a patent draft as per section 9 in Indian patent act. The applicant will need to download Forms - 1, 2, 3 and 5 from Indian patent website through below given link:

http://www.ipindia.nic.in/form-and-fees.htm

The patent applicant needs to fill up the forms, prepare a docket of the prepared forms and the patent draft. Visit the patent office of your zone/jurisdiction, the Indian patent office of visitation can be identified from undermentioned link of Indian patent office website:

http://www.ipindia.nic.in/jurisdiction-of-patent-offices.htm

Submit the forms, patent draft and a cheque or demand draft of an amount guided by Indian patent office. For example – for patent filing – individual/group of individuals/startups can pay ₹ 1,750; SME can pay ₹ 4,400; a large entity can pay ₹ 8,800. A detailed fee structure can be accessed from below link:

http://www.ipindia.nic.in/writereaddata/Portal/IPOFormUpload/1_11_1/Fees.pdf

After submission of these docs, the patent official will file the patent application and give a receipt/acknowledgement of the filed patent application which will have the patent application no. corresponding to the submitted patent application.

  • Through Online Filing (Self):

If an inventor or applicant is holding a class 3 signature, he/she can file a patent through online portal of http://ipindia.nic.in/.

The inventor or the applicant can follow the instructions provided on the Indian patent website for registering as a filer. The inventor or the applicant can also go through Section 9 of the Indian patent act and seek some examples of the published patent in same technical domain for directly filing a patent in India. 

For Example - if your invention is in the field of solar technology, then go to http://ipindia.nic.in/e-gateways.htm#public-search, select "Patent" under public search option and enter keyword "solar" in the title or abstract field.

You will get a list of published patents, select few of them and try to see the uploaded specification in each of the selected result. Match the specification format with the format suggested in Section 9 of the India patent act. Choose only those results which matches the format and read them, choose the patent whose content is easy to read and drafted in suitable manner as per you and that's the template you can follow to draft the patent and file it in Indian patent office. 

File a Patent Application Through a Patent Lawyer/Patent Attorney:

For getting best results out of their patent application, the applicant must take assistance of a patent attorney/patent lawyer having good experience. The patent lawyer’s charges are higher than self-filing but it removes most of the hurdles and silly errors followed during direct filing of the Indian patent application by an applicant.

The attorney also should guide the inventor to follow below mentioned procedure for his or her patent filing:

  1. Patent-ability/Prior Art Search – The patent lawyer should conduct a patent-ability search or novelty search at initiation of the patent services to assess the overlapping of the present invention with granted and published patents. The patent-ability search not only gives an idea of whether the invention is patent-able or not, but also guides how to structure the patent draft.
  2. Patent Drafting – The patent lawyer should draft a best enabled patent as per guidelines provided under section 9 of the Indian patent act. The patent draft should always be reviewed multiple times, should be free from grammatical errors, have proper antecedents and finalized as per satisfaction of the applicant.
  • Patent filing - The patent lawyer shall prepare the forms and file the application after receiving an approval from the applicant over the patent draft and prepared forms.

NON-PATENTABLE SUBJECT MATTERS IN INDIA

Section 3 and Section 4 (Atomic based researches) of the Indian patent act-1970 provides guidelines of which technical subject matters are not patentable on technical grounds. Hence, any invention which falls under the clauses mentioned in Section 3 should be filed as a patent in India. The clauses of Section 3 are:

(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

(b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

(c)    the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;

(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

(f)  the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(g)..(omitted)

(h)  a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

(j) plants and animals in whole or any part thereof other than micro­ organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

(k)   a mathematical or business method or a computer programme per se or algorithms;

(l)   a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n)   a presentation of information;

(o)   topography of integrated circuits;

(p)   an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

For Full Details Over Non-Patentable Matter Please Go To Link – 

http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps3.html 

STAGES OF PATENT REGISTRATION IN INDIA

1) Provisional (Idea) Patent Application

Provisional patent is primarily filed for an idea or semi-developed invention/innovation. If a person has an Intellectual property (IP) in its nascent stage as idea or semi-developed prototype, then he/she can file a provisional patent application or specification in India. By doing the inventor secures his idea for a year’s period. The provisional patent application provides a priority to an inventor or applicant and gives a time line of one year to present the complete invention details failing which the provisional patent application is lapsed and the applicant is not able to claim the idea. 

2) Complete/Non-Provisional Patent Application

Also known as non-provisional patent application or specification in India. The complete patent application is filed when an invention is completely developed and inventor has all the specific technical data pertaining to the invention. The complete patent application is either filed directly (if the inventor already possess all the technical details) or within one year of filing the provisional patent application. The complete patent application is filed with claims and sometimes with experimental details. It is always advised to the inventor to disclose all the technical know how in the complete patent application to achieve best patent coverage.

3) Patent Publication

After filing the complete patent application, the patent application gets published in patent journal of India after 18 months from the filing or priority date. The priority date is first filing date for the complete patent application, it can be a provisional patent application date or directly a complete patent application date.

The inventor can also chose to publish the patent application earlier than the stipulated time of 18 months by filing Form 9 in the Indian patent office. 

For more details please visit –http://ipindia.nic.in/e-gateways.htm#public-search

4) Patent Examination

After patent publication, an inventor can request for patent examination by filing Form 18 or Form 18A (for expedited patent examination if the inventor satisfies at least one of the criteria set forth by the Indian patent office). After filing of request for examination, an examiner is appointed to analyze the patent and its viability of getting grant.

For more details please visit –http://ipindia.nic.in/e-gateways.htm#public-search

5) Payment of Annuities

After getting grant for the patent application in India, an inventor has to file a patent annuities every year and pay prescribed fee to keep their patent sustained in the Indian patent office.

TOP