A patent is an exclusive right granted for an invention (either a product or a process) that provides, a new way of doing something, or offers a new technical solution to a problem. The patent gives its owner the legal right to exclude others from using, making, or selling an invention for a limited period in exchange for publishing an enabling disclosure of the invention.

A patent, granted by the government i.e. patent office, provides an exclusive right to an inventor to make, use, and sell his invention. This exclusive right is valid for a time period of 20 years from the date of filing.

Interesting facts

Following are the two ways an inventor or person can file a patent:

1. The inventor can file the patent on his/her own
2. The inventor can take the help of a patent filing expert or an organization.

Since the patent filing process is long and complicated, most inventors prefer to engage the services of expert patent filing professionals or service providing organizations. Such individuals or firms charge a fee since they have years of experience/ expertise. They can complete the necessary patent filing procedures on the behalf of an inventors.

Following are the steps for filing patent in India

Step 1 – Conceiving the idea or invention

The first step for an inventor/person who wants to go ahead with his or her invention is to compile or collect as much related information as possible. Some of the pertinent questions that the inventor/person must think are: the field of the invention, advantages, how will it help in improving already existing solutions/products/processes (and the like)?

Step 2 – Check if the idea or invention is new

Before an inventor/person begins the patent registration process, it is advisable to check if the invention is patentable. This means that it must be checked if another individual or organization has filed a patent for a similar technology for which an inventor/person is filing. Performing an in-depth patentability search helps you understand whether or not the inventor/person have a chance of getting a patent. While this step is optional, it can save time and help the inventor/person to understand whether or not patent should be filed.

Interesting facts

Before filing a patent application, one must check the patentability of their invention. Slight variations in the patentability eligibility criteria can be seen based on the jurisdiction. Main criteria for patentability are as follows:

Novelty: The invention should be new with no public disclosures in any part of the globe or through any other platform.

Non-obvious: No skilled person in the relevant area of technology should be able to decode the invention easily. The invention must be having distinctive value-adding feature compared to existing inventions in the same field

Business or industrial application: The newly invented product or process should have a wide range of industrial utilities with positive economic implication

Step 3 – Drafting Patent Application

The next step which follows requires effective drafting of the patent application. The application consists of various parts such as claims, background, description, drawing (if any), claims, abstract, and summary. The aforementioned portions of specification/patent application must be carefully drafted to provide effective disclosure of the invention. While drafting the patent application utmost care and precision must be taken.

In case the invention is still in idea stage an inventor/person can draft and file a provisional patent application to protect idea ad to get priority over other competitors. In case of provisional patent application claims will not be there in patent application.

Also an inventor, can either draft patent application by himself or can seek professional drafters help.

Step 4 – Filing the Patent Application before Indian patent Office (IPO)

After drafting the patent application, it is filed in the government patent offices as per the application form in Form 1/jurisdiction. A receipt is be generated with the patent application number. A person/inventor can also file a provisional patent application, if the invention is at an early stage (idea stage without any form of prototype or definitive process).

The advantage of filing a provisional application is that the person/inventor can secure a prior date of filing which is crucial in the patent world. Also, the person/inventor gets 12 months’ time to file the complete specification (patent application).

Step 5 – Patent Application Publication

After filing the complete specification, the application is published after 18 months from the date of filing. There is no need for any special requirement from the applicant for publication. However, if the applicant does not want to wait till the expiry of 18 months, an early publication request can be filed along with prescribed fees by filing Form 9. The patent application is published within one month from the request of early publication.

Step 6 – Request for examination (RFE)

The examination is not an automatic process like publication and the applicant is required to request the patent office to examine the patent application. A normal request for examination (RFE) must be filed within 31 months of the priority date or filing date, whichever is earlier (reduced from 48 months by the Patents (Amendment) Rules, 2024), under Form 18. After the RFE is filed, the controller provides the application to a patent examiner.

The patent examiner examines it with different patentability criteria i.e. novelty, non-obviousness or inventive step, and capable of industrial applicability. After examining the patent application the examiner provides the applicant with a First Examination Report (FER). The application can also file a request for expedited examination of the application under Form 18A.

Step 7 – Responding to objections/examination report

The applicant is required to submit a written response to the raised objections in the examination report. The applicant can argue regarding the patentability of the invention and try negating the objections being raised by the examiner. Physical hearing or video conferencing can also be requested, as per requirement and norms.

Step 8 – Patent Grant

After addressing all objections, the patent application would be placed for a grant once it is found to be meeting all patentability requirements, and finally, the patent will be granted to the applicant. The grant of a patent is notified in the patent journal which is published from time to time.

Any interested person or organization can file a post-grant opposition within 12 months from the date of publication of the granted patent (by submitting a notice of opposition to the controller).

Step 9 – Patent life term and renewal of patent

Usually, a patent holds a validity for 20 years. After 20 years, the patent owner is required to renew the patent by paying corresponding fee.

Conclusion

Although the patent filing process and registration seems to be long and tedious, a person must remember its importance in the long run. The entire process may take couple of years. However, Indian Patent Office is upgrading its offices and process to be able clear of patent applications in timely manner.

The process is created with the intention of ensuring that the inventor gets credit for his invention such that no other individual can claim rights over the invention. The legal rights earned by an individual/organization regarding patent can prevent competitors from using your invention for financial benefits. The patent holder can also sue such individuals and claim compensation for using invention without approval.

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Types of Patents

There are three types of Patents that includes Design Patents, Utility Patents, and Plant Patents.

Utility Patents

The most important type of patent is a utility patent. The utility patent covers different types processes, machines, composition of matter, and manufactures that are novel, inventive and useful for industrial application. In India, the utility type of Patent application requires filing of a complete specification with claims and drawings.

Design Patents

The second type of patent is a design patent. To obtain a design patent in India, an ornamental design of a product has to be submitted rather than the functionality of the product. The design patent includes shape or configuration of the object.

Plant Patent

The third type of patent is a plant patent. The protection for new and distinctive plant can be obtained by filing a plant patent. Though the plant patents protection is not covered in India, however some other countries like U.S. provides an option filing of the plant patent.

Patent filing procedure in India

• The most important factor in filing a patent application is preparing a patent specification.
• After the filing, the Indian Patent office publishes the Patent Application in Patent journal. The timeline for publication of a patent application is 18 months from the filing date or priority date.
• The publication is followed by “Examination of patent application” by Indian Patent Office. The Applicant has to submit a Request for Examination (RFE) to Patent Office within 31 months of the priority date / date of filing — a timeline reduced by the Patents (Amendment) Rules, 2024.
• The Patent application will go to the examination stage after the publication. Based on the invention and requirement of patent law, an examination report will be issued by the patent office to the Applicant.
• The Applicant has to submit response for the objections within 6 months of date of Issuance of FER, which can be further extended to three months.
• After submission of response to FER by the applicant, the controller then either issue a hearing notice or may grant patent application and publish the patent application in official journal accordingly.

Also read: Patent Filing Procedure In India – An Overview From Filing Till Grant!

Benefits of Patent Filing

• Filing the patent application provides a right to protect ideas or inventions from copying by others.
• Filing a patent application for an invention helps in preventing the competitors from copying the invention or reverse engineering the invention.
• Filing a Patent application benefits a country by growing its economy, as it encourages the public to get the desired products and services at affordable prices.
• Filing a patent application provides an opportunity for new and growing businesses. This is particularly important for Start-ups.
• A granted Patent allows the owner of the Patent to sue the infringers or take legal action against the infringer.
• A granted Patent gives the owner of the Patent a legal monopoly on selling, using, making, distributing, importing, or exporting their creation for a specified time period.
• Patents can be licensed to other parties allowing these parties to exploit the invention in exchange for royalty payments.
• The existence of the Patent Application may serve as a warning to competitors to stay clear of a protected technology.
• Provisional Patent registration provides a priority date for invention as a security and surety that no other person or company could claim the ideas similar to his invention, as soon the Provisional Patent Application get filed.
• By filing a Patent application, a patent owner may explore the option of commercializing the invention.
• By filing a Patent Application inventor can sell a product by labelling the product as ‘Patent pending’.
• Patent rights allow public disclosure that helps the inventor in building up his portfolio along with increasing the business partners, market value, and funds.
• A granted patents in India provides the recognition and credibility of the inventor or his startup or a company in the market.

Patent Application filing trends in India

• In Indian Patent Office, Patents Examination increased by 72.2%.
• The grants in Indian Patent Office increased by 55.3%.
• The final disposal of applications increased by 37.7% Designs.
• Pendency reduced from 8 months in March 2016 to one month in March 2017.
• In India, online filing increased to 90% in patents and 80 % in trademarks.
• In Indian Patent Office, pendency reduced from 14 months to less than 1 month.

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