This article on ‘How to file a Patent Application in India: All you need to Know‘ was written by an intern at Legal Upanishad.
When an individual or a company makes a new invention it is very crucial for them as the invention could be life-changing for them. The nature of this invention could attract people who want to steal that invention. For this purpose, patents were introduced to protect the rights of the inventor. This article will take a look at what a patent is, the types of patents, and how to file a patent in India.
What are Patents?
A patent is a process by which intellectual property rights are given to an individual or a company by a government authority. When a person obtains a patent from the government, they get the exclusive rights in all the processes involved in making the product like its design, manufacturing, price, etc.
Patents are given if they have made a new invention in any field. It can be something as little as a pen and it can also be a groundbreaking new nanobot or AI technology. The process for obtaining a patent is generally long and difficult. One has to go through the tedious process of applying for a patent. It typically takes about 3-5 years to obtain a patent the normal way.
Types of patent application:
- Ordinary Patent – These patents are filed when there is no urgency or priority. In other words, these patents are filed when the goal of the application is not in response to a patent application filed by someone else of a similar nature. These applications must have all the specifics describing the invention thoroughly.
- Convention Application – These applications are made if there is urgency in obtaining a patent. If there is a patent application already made in any of the convention countries, these applications are made to claim a priority date over the other application.
- PCT International Application – These applications are international applications and these patents ease the process of obtaining a patent in multiple countries in one go. It is governed by the Patent Corporation Treaty and can be validated in up to 142 countries.
- PCT National Phase Application – A national phase application is filed in each of the countries wherein protection is sought. The national phase application must be filed within 30 or 31 months from the priority date or the international filing date, whichever is earlier.
- Patent of Addition – These patent applications are filed if there are any changes or modifications in the invention which has already been applied for or if it has already been patented. These patents can only be obtained after obtaining a parent patent, so there is no need to give a separate new renewal fee.
- Divisional Application – These applications are made if the applicant wants to divide an already submitted application into two or more new applications if it claims that there are multiple inventions.
Criteria for obtaining a patent
- Novelty- This is perhaps the most important criterion in order to get a patent. Section 2 (1)(j) of the Indian Patent Act says that the product must be a new ‘invention’ that involves an inventive step and is capable of industrial application. Section 2 (l) of the Act defines the invention. It should be a product or a technology that has not yet been published in any document or used in any country in the world.
- Inventive Step – Section 2(1)(a) of the Indian Patent Act defines ‘inventive step’. It means that the invention should be a technical advancement in its field as compared to already existing knowledge or it should have some economical advantage or both.
- Industrial Application – Section 2(1)(ac) of the Patents Act, 1970, defines “Capable of Industrial application”. It should have some sort of industrial use.
Steps Involved in filing a patent
Patents can be filed in two ways. The first is that the inventor files for the patent by themself. The second way is that the inventor takes the help of a professional who knows the nitty-gritty of filing a patent. The professional can be an individual or a firm. They charge a fee for their services but they also complete all the necessary procedures required. Since the patent process is time-consuming and complicated, inventors generally take the help of a professional.
These are the steps to file a patent in India:
- Patentability check – The first and most important step is to check if the invention is an invention or if it has been invented by someone else. Inventors also need to check if there is similar technology. Individuals need to perform an in-depth search to know if they have a chance of getting a patent.
- Drafting an application – After the inventor is done with the patentability check they can move to draft an application for patent. In order to start the process, they need to fill out the Indian Patent Application Form 1. For every patent filed, there must also be a Form 2 which has the specification of the patent. Depending upon the stage of the invention, inventors can choose between a provisional and complete patent application. If the invention is not completed, they can choose a provisional application. They have 12 months to complete the application and file for the same.
- Filing an application – There are several documents and forms that need to be submitted. They are listed below:
- Form 1 which is an application for the granting of a patent
- Form 2 which is the patent specification form
- Form 3 is an undertaking if there is also an application in a foreign country.
- Form 5 which in which the inventor declares their invention
- Form 26 authorizes the agent or the professional to represent the inventor on his behalf
- Form 28 which is compulsory if the inventor is a small enterprise
- Priority documents are the inventor is claiming priority over some other patent application
- Publishing the patent application – After the inventor submits all his documents, the patent application is safe with the Indian Patent Office. It is later published in an official patent journal after 18 months. If an inventor wants to speed up the publishing process, they need to fill out Form 9 which can reduce the time to just 1 month after submitting the request. If the application is incomplete, the patent application will not get published.
- Examination of the patent application – After publishing, the patent is examined thoroughly by the examiners based on the merit of the invention. This process is not automatic and the applicant needs to make a request to start this process by submitting Form 18. This process can also speed up by filling out Form 18(A). There are some steps that the examiner follows.
- It is thoroughly scrutinized by the examiner according to the laws and rules
- The examiner then checks if there are any similar technologies or products
- After reviewing the application, he submits a first examiner report, in which he states his objections to the application if he has any. Any objections can delay the process by up to 9 months.
- The inventor then needs to make changes with respect to the objection. He can also get a time extension by filling out Form 4
- The decision to grant patent – If the examiner finds the application satisfactory, the patent is granted to the inventor, it is later published in the patent gazette.
- Renewal – It is also required that the patent holder pays the annual fees for the renewal of his patent. Any patent granted only lasts for 20 years at most.
Patents protect the invention of any individual or a company by providing them with the sole right to use them. If someone else tries to use it, the patent holder can sue the person who is stealing. It is becoming increasingly important for inventors to protect their inventions from getting stolen. Although the Indian Patent Office is hiring new examiners and also upgrading its offices to review the application, the process is still too long and applicants are at the risk of someone else coming up with the same idea.
- Will Kenton, Patent, https://www.investopedia.com/terms/p/patent.asp accessed 19th July 2022.
- How to File Patents? Understanding the Patent Process in India, https://iptse.com/how-to-file-patents-understanding-the-patent-process-in-india/ accessed 19th July 2022.
- Tushar Kohli, Types Of Patents Granted And Basis For Rejection, https://www.mondaq.com/india/patent/898672/types-of-patents-granted-and-basis-for-rejection accessed 19th July 2022.