Patent Filing Process in India

 

Patent Filing Process in India | Khurana and Khurana

Patent Filing Process in India ~ In the era of technological advancement and innovation, protecting intellectual property has become a critical aspect for individuals, startups, and companies. Filing a patent in India gives the inventor exclusive rights over the invention and prevents others from using or copying it without permission.

This article provides a detailed step-by-step overview of the patent filing process in India as governed by the Indian Patents Act, 1970 and administered by the Indian Patent Office (IPO).

What is a Patent?

A patent is an exclusive legal right granted to an inventor for a new product, process, or invention that offers a novel technical solution to a problem. The patent allows the inventor to exclude others from making, using, selling, or importing the invention for a period of 20 years from the date of filing.

Who Can File a Patent?

The following entities are eligible to file a patent application in India:

• Individual inventors
• Startups or small entities
• Companies (Indian or foreign)
• Legal representatives of a deceased inventor
• Assignees of the inventor

Requirements for Patentability

An invention must satisfy the following conditions to be patentable:

1. Novelty – The invention must be new and not disclosed in any prior art.
2. Inventive Step – It should not be obvious to a person skilled in the relevant technical field.
3. Industrial Applicability – It must be capable of being used or made in any kind of industry.
4. Patentable Subject Matter – It must not fall under the categories excluded under Sections 3 and 4 of the Patents Act.

Step-by-Step Process of Patent Filing in India

1. Patent Search (Optional but Recommended)

Conducting a patentability search helps determine whether the invention meets the criteria of novelty and inventive step. This step minimizes the risk of rejection and helps in drafting a strong patent specification.

2. Drafting the Patent Application

There are two types of specifications:

• Provisional Specification: Filed when the invention is still under development. It secures a priority date and gives the inventor 12 months to file the complete specification.
• Complete Specification: Filed when the invention is fully developed. It includes detailed description, claims, drawings, and abstract.

3. Filing the Patent Application

Patent applications can be filed:

• Physically at any of the four patent offices in India (Delhi, Mumbai, Chennai, Kolkata)
• Online via the official website of the Indian Patent Office

Key forms to be filed include:

• Form 1: Application for grant of patent
• Form 2: Provisional/Complete specification
• Form 3: Statement and undertaking regarding foreign applications
• Form 5: Declaration of inventorship
• Form 26: (if filed through a patent agent)

4. Publication of Patent Application

The patent application is published in the official patent journal after 18 months from the date of filing. Applicants can also request for early publication by filing Form 9.

5. Request for Examination

The application will not be examined unless a Request for Examination (RFE) is filed using Form 18 within 48 months of the filing date. The controller then assigns it to an examiner for scrutiny.

6. Examination of the Application

The examiner reviews the application and issues a First Examination Report (FER), which may include objections. The applicant is required to respond to the objections within 6 months (extendable by 3 months).

7. Hearing (if required)

If the objections are not resolved through written responses, a hearing may be scheduled. The controller reviews all submissions and decides on the application.

8. Grant of Patent

If all objections are cleared, the patent is granted and published in the Patent Journal. The grant of patent confers exclusive rights to the inventor for 20 years from the date of filing.

Post-Grant Compliance

After the grant of the patent, the patentee must:

• Pay annual renewal fees starting from the 3rd year
• Ensure the patent is being worked in India (Form 27)
• Monitor and enforce rights in case of infringement

The patent filing process in India is systematic and well-regulated. It requires a sound understanding of legal, technical, and procedural aspects. Filing the patent with proper documentation and within prescribed timelines is essential to secure and maintain exclusive rights.

For inventors, startups, or businesses seeking to protect their intellectual property, understanding this process is the first step towards leveraging their innovations commercially and legally.