What are the procedures for filing a patent application in India? The patent filing procedure in India involves several steps, starting from conducting a comprehensive patent search to ensure the novelty of the invention, followed by preparing and submitting a detailed patent application. This procedure is governed by the Indian Patents Act, 1970 and is overseen by the Indian Patent Office. Understanding each step of this process is crucial for applicants to successfully navigate the complexities of Indian patent law.

To understand how to file a patent in India, one must know the specific requirements, timelines and Indian patent laws. The process includes drafting a patent specification, filing the application with the necessary forms and fees and undergoing an examination by the patent office. Applicants must also be prepared to respond to any objections raised during the examination process. 

 

Types Of Patent In India 

To file a patent in India, it is important to know the type of patent for which you’ll be filing an application. They are as follows – 

A. Utility Patent

These cover new and useful inventions or significant improvements to existing inventions. The invention must be novel, non-obvious, and industrially applicable. The term for utility patents is 20 years from the date of filing. The examination process is rigorous, involving detailed scrutiny of the invention’s novelty, inventive step, and industrial application. Utility patents protect a wide range of innovations, including processes, machines, articles of manufacture, and compositions of matter.

B. Design Patent

Design Patent basically applies to appearance and aesthetics, covering the unique visual qualities of a manufactured item. The design must be new and original, focusing on the ornamental rather than functional aspects. Design patents have a term of 10 years, extendable by 5 years. The examination process for design patents is less stringent compared to utility patents, focusing on the originality and novelty of the design. These patents are crucial for industries where appearance and design are significant factors, such as consumer products, fashion, and automotive industries.

C. Plant Patent

As the name suggests Plant Patents are obtained to protect new and distinctive Plant varieties. Novel Plant varieties and organically discovered plants more often are protected under this patent type. The plant must be novel, non-obvious, and distinct from known varieties. Plant patents have a term of 20 years from the date of filing.

 

Eligibility Criteria For Patent Filing

Who can file a Patent In India?

Section 6 of the Act, 1970 clearly states the persons that are entitled to make an application for the Patent. The application can be filed either alone or jointly, by any person claiming to be the first and true inventor, or by an assignee of the first and true inventor to whom such right has been transferred (accompanied by the proof of such assignment). Also, a legal representative of any deceased person can make an application for a patent. Additionally, to avoid any mistakes and discrepancies one could hire a patent attorney in India for filing the patent application. 

Conditions for Patentability 

The following attributes are essential for a product to qualify for the Patent Application – 

  • Novel: This means that before the date of filing a patent application with a complete specification, the invention must be new and not have been published in any document or used domestically or elsewhere in the world. 
  • Non-Obviousness: It should have an inventive step and involves a technical advance and not mere modification of prior invention. The invention must be obscure to a person already skilled in that field. 
  • Industrial Application: The invention must be capable of being used or made in any kind of industry and not just an abstract creation. 
  • Not prohibited under the Act: Section 3 and 4 of the Act state what shall not be termed as an invention, and such creations shall not be patentable under this Act. For example, inventions relating to atomic energy, mere discovery of scientific principles, frivolous inventions etc. 

 

Steps to File a Patent In India 

The patent filing procedure in India involves several steps to ensure the protection of intellectual property. Here’s a detailed guide to the process:

  • Patent Search: Before an invention is patented in India, a patent search is conducted to see whether there are any similar inventions already patented or available in the public domain and whether their invention meets the novelty criteria under the patent act or not. 
  • Drafting the Patent Application: The next step after confirming patentability requirements in India, a detailed draft of the patent application must be prepared with utmost attention and accuracy to provide complete disclosure of the invention. The application is divided into several sections, including the abstract, summary, claims, background, description and drawing(if any). 
  • Filing the patent application: After drafting of the patent application, it shall be submitted to the Indian Patent Office either offline or through a comprehensive online filing system with provisional or complete specifications along with the requisite fees as prescribed in Schedule I. If the application is filed with provisional specifications, the applicant must file a complete specification within a year of the application date, otherwise, the application shall be abandoned. 
  • Publication of the patent application: After the submission of the patent application with the Indian patent office, it shall be published in the official patent journal within 18 months of filing of the application. The purpose of such publication is to enable the public to express objections if any. 
  • Examination of the Patent Application: Once the application is filed it has to be examined by the patent officer before granting the patent to see whether it is in accordance with the Act and rules. Form 18 contains the request for the examination of the application of the patent and it can be filed by the applicant or any interested person within the period of 48 months from the priority date or the filing date whichever is earliest. 
  • Grant of patent: Once the objections are cleared, the patent office shall grant the patent and publish it in the Patent office journal. Once the patent is granted, It gives the inventor an exclusive right to make, use, sell or import the invention in India for a period of 20 years. 
  • Post Grant opposition: Once the patent has been granted, it can still be opposed by a third party by way of notice of opposition. There is a limitation on filing such post grant opposition and thus it can be filed within a period of 12 months from the date on which the grant of patent was published in the Indian Patent Journal. 

 

FAQs

1. What is required to file a patent in India?

The first and foremost requirement for the patent filing procedure in India is that the applicant must be the creator of the invention and his invention fulfils the eligibility criteria for an invention to be patentable. Once the conditions of the patentability have been fulfilled, the application for the same shall be filed with the Indian patent office along with the necessary forms.

2. What are the 3 criteria required to file a patent? 

To file a patent in India an invention must meet three essential criteria: novelty, non-obviousness, and industrial applicability. Novelty means the invention must be new and not previously known or used. Non-obviousness requires that the invention involves an inventive step that is not obvious to someone with knowledge and experience in the subject. Industrial applicability means the invention must be capable of being made or used in some kind of industry, ensuring it has practical utility. 

3. How long does it usually take to get a patent in India?

The patent application process in India may take considerable time and differ depending on the complexity of the invention and a variety of other factors. In India, usually, approval of the patent occurs within 1-5 years from the date of filing of the application. 

4. What are the fees associated with patent filing in India? 

The cost to file a patent in India may differ on various factors like the type of patent, complexity of invention or the entity filing so. It may range from thousands to lakhs. The cost of a patent attorney in India would vary from Rs. 20,000 – Rs. 30,000 which may vary according to their experience and circumstances. 

5. Can One file a provisional patent application in India? 

Yes, a provisional application for the patent can be filed if the invention is in its preliminary stage. But complete specifications must be filed within 12 months from the date of application to save it from abandonment. Before filing a provisional patent application one must consider taking guidance from a patent attorney in India.

 

Conclusion

The patent filing procedure in India involves several critical steps, starting with a thorough patent search to ensure the invention’s novelty, followed by drafting and submitting a detailed application to the Indian Patent Office. Understanding how to file a patent in India is crucial, as it includes preparing the necessary forms and fees, undergoing an examination, and addressing any objections raised. Governed by Indian patent law, this process can be complex, and seeking the assistance of patent attorneys in India can significantly enhance the chances of successful patent registration in India.

Simplify Your Patent Filing with MAHESHWARI & CO.’s Expertise

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