Patent Registration

What is Patent Filing Procedure in India?

Patent filing is the first step taken by an inventor to protect his or her invention from being misused. The patent filing procedure in India may be a little complex for those having little knowledge on it. However, with proper legal guidance, the patent application can be filed easily. In this article, we shall inform you about the complete procedure of patent filing.

What is a Patent?

A patent is a right granted to an individual or an enterprise that prohibits other from making, selling, or importing such patented product without prior approval.

Through patent registration, the patentee will have the right to control the making, using, or selling of the patented product or process; however, whether the innovation is patentable or not depends upon various factors like the invention should be innovative, which involves an inventive step and can be used in industry.

Who can file a Patent?

A patent can be filed by an individual or business that seeks to protect an invention or an idea. An invention can be a new product or a new process.

Essential requirements to be met before applying for patent filing procedure

 It is critical to note the following points before embarking on a patent filing process:

• To qualify for Novelty

The invention should not be anticipated by the publication or should not be used in the country before the priority date of patent filing.

• To qualify for Non-Obviousness

The invention should be technically advanced as compared to the existing knowledge and which makes the invention non-obvious to a person skilled in the art.

• To qualify for being used in the industry

The invention should be capable of being made or used in the industry.

• Non-Patentable Subject Matter

The invention should not fall in the category of Non-Patentable Subject Matter that is provided under the Indian Patents Act, 1970^[1].

Patent Filing Procedure in India

The step by step patent filing procedure is given below:

• Patent Search

For a patent registration, carrying out a patent search is essential. This will help you avoid lengthy official procedures. You may do this yourself or take the assistance of an expert. 

• Patent Filing

As per the Patents Act, the inventor or his agent, or his legal representative can apply for patent in the head office of the patent office in India. It is for the convenience of the inventors that multiple office branches have been opened.

One of the crucial aspects while filing a patent is to prepare patent specifications. It is a specialized task. You may pen down the idea or concept, mentioning the key details about the invention. Also, verify whether your idea or invention is patentable according to the Indian Patents Act.

Drafting a patent application is an art it requires the help of a patent expert who will assist the applicant in patent filing procedure. In case the applicant is in initial stages of the R&D process, then file an optional preliminary application known as the provisional patent application.

You may be required to submit various forms while filing the patent.

These forms are as follows:

1. Form 1– Application for grant of patent;
2. Form -2– Patent specification form;
3. Form-3– Statement, and undertaking with regards to foreign applications;
4. Form-5– Declaration of invention to be filed with complete application;
5. Form-26– Form authorizing patent agent; and
6. Form-28– Form for small entity/start-up.

• Publication of Patent Application

Once the application is filed, the application is then safely secured by the Indian Patent Office. The patent is published in the patent journal within 18 months.  A request can be made for early filing of the patent application along with the prescribed fee. For patent registration, the Indian patent office keeps every such application confidential until it gets published officially in the patent journal.

There are scenarios where your patent application may not get published. This may be due to incomplete application or due to withdrawal requests made by the individual filing the patent.

• Examination of Patent Application

There shall be a formal submission of a request for the examination of the patent that must be filed in 48 months from the filing of the patent. In case where the applicant fails to file within the prescribed time period, the application shall be deemed to be withdrawn by the Patent Office. The examiner conducts a comprehensive investigation and issues examination report. 

• Patent Objections

It could be a possibility for patent applicants that they receive objections such as inconsistent or unclear claims, or invention lacking novelty, etc., therefore, analyze the patent examination report and draft a reply to such objections.

• Grant of patent

Once the requirements of patentability are met, and the examiner finds no objections, the notification to grant patent is published in the patent journal.

Why should you file a Patent in India?

There are enough reasons for you to go through the patent filing procedure.

Some of them are as follows:

• A patent proves to be a boost for innovations and inventions. When an applicant get patent, such a person becomes the exclusive owner of the invention or idea.
• Patent filing in India is useful for business as the grant of patent restricts others from copying, selling, or making the intellectual property without consent. The patent holder is able to protect his patent rights in support of the existing laws.
• Patents can be sold or licensed like any other property, and it can also be transferred.
• A patented product is expected to improve brand perception and allows you to charge a premium.
• With patent rights, the owner of patent can control the use of his invention for a long period.

Duration of Patent in India

A patent is protected for 20 years in India from the date of its filing. This period of 20 years is calculated from the date of application filing regardless of provisional or complete specifications.

Patent Renewal

Once the filing process is finished, you should ensure that the patent is renewed in a timely manner. The patent may be renewed also after the validity. The fee of renewal has to be paid to the patent office before the expiry period of the patent. Advance payment can also be made according to the Indian patents Act. Prior to paying the renewal fee, the patentee should provide the patent number, date of the patent and the year in respect of which the fee is being paid.

Points to know while going through the patent filing procedure

There are certain rules that you should keep in mind:

• The fee payable with respect to  grant of patent and in respect of other matters for which fees is payable are mentioned in the first schedule;
• An additional 10% fee shall be payable in case the application for patent and documents are filed physically;
• The fee payable under the Act or rules shall be paid at the appropriate office in cash or through electronic means or can be sent through bank draft or can be drawn on a scheduled bank. In case the draft or banker’s cheque is sent through post, the fee shall be deemed to have been paid on the date when the draft or banker’s cheque reached the controller;
• A refund is initiated only when an applicant withdraws his request for examination before the first statement of objection is issued; and
• A person may give advance money and request the controller to realize any fee payable by him from the deposit.

Why is a provisional patent application preferred before filing a patent application?

• It secures your date and work. It means no competitor can file for a similar invention when you filed for provisional patent application.
• The holder of a provisional patent has a good chance of being granted patent as India has first to file system.
• The cost for provisional patent application is less than permanent patent.
• The provisional specification allows you to assess the market potential of your invention.
• When you are prepared with detailed specification of your invention, you may go for complete patent application.

Conclusion

Going through the patent filing procedure is the step you need to take for securing a patent to your invention. I hope that this article has helped you to gain information on patent filing in India. It is advised that you seek the help of a professional to sail through the filing process. 

Read our article:Patent Registration Process in India