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

Patent filing procedure in India - Intellect Vidhya

Intellectual property brings whole lot of benefits. It turns an idea into an profit-making asset, enhances the market value of a business and even helps for raising finances. Patent is one such form of intellectual property. Before we analyze the patent filing procedure in india, let us analyze what is patent? And what is the importance of it.

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 by 48 months from the date of filing of the patent application, 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.

Share:

Facebook
Twitter
LinkedIn
WhatsApp

Leave a Reply

Categories

Search

    Categories

    Recent Posts

    • All Post
    • Copyright
    • Design Patents
    • Patent Filing
    • Patent Search
    • Trademark

    Related Posts

    micro copyright in India - Intellect Vidhya

    Micro Copyright in India: Protecting Small-Scale Creative Works

    In the digital age, the creation and sharing of content have reached unprecedented heights. With the proliferation of user-generated content, short-form media, and the increasing significance of individual contributions to larger works, the concept of “micro copyright” has emerged. Micro copyright refers to the protection of smaller, often more granular, creative expressions. In the context of Indian copyright law, this concept presents unique challenges and opportunities. This article explores the intricacies of micro copyright and the conundrums surrounding its protection in India. Understanding Micro Copyright Micro copyright encompasses the rights associated with smaller creative works such as social media posts, memes, short videos, gifs, and even individual elements within larger works, like specific phrases or designs. These forms of content, while often brief and seemingly inconsequential, can hold significant value and can be the subject of copyright protection. The Legal Framework of Copyright in India The Indian Copyright Act, 1957, primarily governs copyright protection in India. The Act provides protection to original literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings. For a work to be protected, it must be original and expressed in a tangible form. Challenges in Protecting Micro Copyright 1. Originality and Fixation One of the fundamental requirements for copyright protection is that the work must be original and fixed in a tangible medium. This can be challenging for micro content, where the line between original creation and common expression is often blurred. Determining the originality of a tweet, meme, or short video clip can be subjective and contentious. 2. De Minimis Doctrine The de minimis doctrine, which means “about minimal things,” can pose a significant challenge for micro copyright. This doctrine suggests that the law does not concern itself with trivial matters. Small snippets of content might be considered too insignificant to warrant protection, leaving creators without legal recourse for unauthorized use. 3. Fair Use The concept of fair use allows for limited use of copyrighted material without requiring permission from the rights holders. In the context of micro copyright, determining what constitutes fair use can be particularly tricky. For instance, sharing a meme or a short clip might be considered fair use, but if it goes viral and gains commercial value, the original creator might seek protection and compensation. 4. Enforcement and Attribution Even if micro content is eligible for copyright protection, enforcing these rights can be challenging. Monitoring the vast expanse of the internet for unauthorized use of small-scale content is a daunting task. Additionally, the ease with which digital content can be shared and altered complicates the process of ensuring proper attribution and compensation. The Way Forward 1. Clearer Guidelines and Definitions To address the challenges of micro copyright, clearer guidelines and definitions are needed within the Indian Copyright Act. Defining what constitutes a protectable micro work and setting standards for originality can provide better clarity for creators and users alike. 2. Digital Rights Management (DRM) and Technology Leveraging technology, such as digital rights management (DRM) systems and content recognition algorithms, can help creators monitor and enforce their copyright more effectively. These technologies can automate the process of identifying unauthorized uses and facilitate easier enforcement. 3. Education and Awareness Increasing awareness among creators about their rights and the mechanisms available for protecting their content is crucial. Educational campaigns and resources can empower creators to navigate the complexities of copyright law and safeguard their micro creations. 4. Legal Reform and International Cooperation Given the global nature of digital content, international cooperation and harmonization of copyright laws can play a significant role in addressing the challenges of micro copyright. Legal reforms that consider the unique nature of digital content and micro works can provide a more robust framework for protection. Conclusion The rise of micro copyright in the digital era presents a unique conundrum under Indian copyright law. While the current legal framework provides a foundation for protecting creative works, the nuances of micro content require more specific attention and adaptation. By addressing the challenges of originality, fair use, enforcement, and attribution, and by leveraging technology and education, India can better protect the rights of creators in the evolving landscape of digital content.

    Read More »
    July 20, 2024 No Comments
    Importance of Trademarking your Restaurant Name - Intellect Vidhya

    Importance of Trademarking your Restaurant Name

    Have you ever walked into a restaurant, drawn by its catchy name or eye-catching logo, only to discover that it’s not the establishment you thought it was? In the bustling food and hospitality industry of India, this scenario is becoming increasingly common. As more and more eateries pop up, it’s crucial for restaurant owners to protect their brand’s identity through trademark registration. A trademark is like a unique fingerprint that sets your goods or services apart from the competition. It’s a legal stamp that says, “This is ours, and no one else can use it.” And in the world of restaurants, where first impressions can make or break your business, a strong trademark can be a game-changer. Why Trademarks Matter for Restaurateurs? Success Stories of Trademarked Restaurant Brands The Consequences of Neglecting Trademark Protection In the vibrant culinary landscape of India, trademarking your restaurant brand is more than just a formality – it’s a strategic move that can safeguard your business identity, maintain brand recognition, and provide legal recourse against infringement. By understanding the importance of trademarks and understanding the appropriate registration process under Indian trademark law, you can protect your valuable intellectual property and pave the way for a future as bright as a perfectly cooked dish, fresh out of the kitchen.

    Read More »
    July 13, 2024 No Comments
    The Significance Of Prior Use In The Trademark Law Vans V Ivans - Intellect Vidhya

    The Significance of Prior Use in the Trademark Law: Vans v. Ivans

    In the complex realm of intellectual property rights, few principles hold as much significance as the concept of “prior use” in Indian trademark law. The recent ruling by the Delhi High Court in the Vans v. Ivans case has brought attention to the fundamental concept of giving precedence to the first user of a trademark in the market. The Vans v. Ivans Case: The case centred on a disagreement between Vans Inc., a well-known American footwear and apparel company, and FCB Garment Tex, an Indian company that used the “IVANS” trademark. Vans Inc. filed a request to invalidate FCB Garment Tex’s trademark registration in India, claiming that their “VANS” mark had recently gained recognition as a well-known trademark in the country. Nevertheless, the Delhi High Court ruled in favour of FCB Garment Tex, citing the prior use principle. Important Factors in the Court’s Decision The court’s ruling was influenced by several crucial elements. Firstly, it emphasised that FCB Garment Tex had been using the “IVANS” mark in India for years before Vans Inc. entered the market, applying the “first in the market” principle. Furthermore, the court made it clear that simply declaring a trademark as well-known does not automatically give the owner the authority to cancel other marks that were used earlier in India. Finally, the court determined that FCB Garment’s utilisation of the marks was both sincere and simultaneous, granting them protection under Section 12 of the Trade Marks Act. Supporting the Principle of Prior Use This landmark ruling is a strong affirmation of the prior use principle in Indian trademark law. This principle emphasises that the initial user of a trademark in the market holds greater rights compared to later users, regardless of their registration status. This concept is deeply embedded in the Indian Trade Marks Act, 1999, and aims to safeguard businesses that have dedicated significant time and resources to establish their brand identity in the market. The Reasoning Behind Prior Use There are several reasons behind the prior use principle. It strives to recognise and safeguard businesses that have proactively built their brands in the marketplace. By prioritising the initial user, the law recognises the dedication and resources required to establish a strong brand presence and cultivate customer loyalty. This principle also helps to prevent unfair competition by ensuring that well-known brands are not replaced by new ones with similar marks, thus maintaining consumer trust and market stability. Territorial Nature of Trademark Rights In addition, the principle of prior use acknowledges the territorial nature of trademark rights. The Vans v. Ivans case clearly illustrates that having a worldwide reputation is not enough to establish legal rights in a particular jurisdiction. The principle highlights the significance of establishing a tangible market presence and utilising a trademark within India, rather than solely relying on international recognition or registration in other nations. Engaging with well-known Trademarks The prior use principle also has implications for other aspects of trademark law, including the recognition of well-known trademarks. The ruling by the Delhi High Court provides clarity on the advantages of having a well-known trademark status, while also acknowledging the rights of prior users in the market. This delicate equilibrium ensures the safeguarding of well-known local brands while acknowledging the prestige and recognition of globally renowned trademarks. Practical Considerations for Trademark Owners In practice, trademark owners are faced with a significant burden of maintaining proper documentation of their trademark use due to the prior use principle. This encompasses sales records, advertisements, and proof of customer recognition. Consistent and authentic use of the mark is essential, as any substantial gaps in usage can undermine a prior use claim. Conclusion Ultimately, the verdict of the Delhi High Court in the Vans v. Ivans case serves as a strong affirmation of the prior use principle within Indian trademark law. It emphasises the significance of having a strong market presence and building a reputable brand in order to establish and safeguard trademark rights in India. As the country continues to attract global brands while nurturing its own business ecosystem, this principle will undoubtedly have a significant impact on the development of trademark strategies and dispute resolutions.

    Read More »
    July 12, 2024 No Comments
    The Ethical and Legal Dilemma of AI Voice Cloning in the Music Industry - Intellect Vidhya

    The Ethical and Legal Dilemma of AI Voice Cloning in the Music Industry

    In recent years, artificial intelligence (AI) has made remarkable progress in various fields, including music production. Voice cloning in music has been a subject of intense debate, raising questions about copyright infringement, moral rights, and the preservation of artistic integrity. The recent criticism voiced by legendary Indian playback singer Kumar Sanu against AI voice duplication brings attention to the mounting concerns within the music industry. Power and Potential of AI Voice Cloning AI voice cloning technology has made significant progress in recreating the voices of singers with outstanding precision. This ability has resulted in the development of new songs that utilise the voices of artists who have passed away, as demonstrated in the recent example of “Pehle Hi Main.” This song was created using an AI-generated voice that mimics the late Mohammed Rafi, who sadly passed away in 1980. Although this technology presents fascinating opportunities for music production and preservation, it also brings up important ethical and legal concerns. Dealing with Copyright Infringement Copyright infringement is a significant legal concern when it comes to AI voice cloning. A singer’s voice is regarded as their valuable asset, safeguarded by copyright laws in numerous jurisdictions. When AI is employed to imitate a singer’s voice without authorization, it may potentially infringe upon copyright protections. This encompasses violations of reproduction rights, distribution rights, and the unauthorised creation of derivative works. Moral Rights and Personality Rights In addition to copyright concerns, AI voice cloning also brings up ethical and legal questions surrounding moral rights and personality rights. It is important for singers to safeguard their work from any alterations or manipulations that may negatively impact their reputation. Additionally, there is a potential for confusion and misrepresentation when AI-generated voices are not explicitly identified. Furthermore, in numerous legal systems, people possess the authority to regulate the commercial exploitation of their identity, appearance, or voice. Voice cloning might be perceived as a violation of these rights. Cloning the Voices of Deceased Artists Using AI to replicate the voices of deceased artists, such as Mohammed Rafi, brings about a whole new set of challenges. Although copyright protection usually lasts for many years after an artist’s passing, the ethical considerations surrounding the use of a deceased artist’s voice without their permission are quite substantial. There are concerns regarding the preservation of the legacy and artistic intentions of deceased musicians. Industry Response Kumar Sanu’s decision to pursue legal protection against AI voice cloning demonstrates a rising recognition of these concerns within the music industry. Other artists and industry professionals are also advocating for the establishment of regulatory frameworks to oversee the utilisation of AI in music production. There are several potential solutions being discussed to address the challenges posed by AI in music. These include establishing licencing protocols for the use of AI-cloned voices, requiring clear disclosure when AI voice cloning is used in a production, and developing specific laws to tackle these unique challenges. The Path Forward As AI technology advances, it is essential for the legal system to stay up to date. Collaboration between the music industry, legislators, and AI developers is crucial in establishing a framework that balances the protection of artists’ rights with the promotion of innovation. This could potentially include the need to revise copyright laws to specifically tackle AI-generated content, setting industry norms for the ethical application of AI in music production, and devising methods for artists to maintain control over and profit from the utilisation of their AI-replicated voices. Conclusion The emergence of AI voice cloning technology brings forth a range of possibilities and complexities for the music industry. Although it presents exciting opportunities for creativity, it also raises serious concerns regarding artists’ rights and the authenticity of their work. As evidenced by Kumar Sanu’s case, it is clear that there is a pressing requirement for the establishment of legal and ethical frameworks to regulate the utilisation of this technology. As we move forward with the more enhanced versions of AI, it’s crucial to find a harmony between technological advancement and safeguarding artists’ rights. It is crucial to establish thoughtful regulation and foster industry cooperation to ensure that AI positively impacts the creative ecosystem of the music industry.

    Read More »
    July 8, 2024 No Comments