Patent process in India

The patent process in India is governed by the Indian Patents Act, 1970, and the Indian Patent Rules, 2003. It involves multiple steps and can be a complex procedure for individuals and businesses seeking to protect their inventions.

Research and Patentability

Before filing a patent application, it is crucial to conduct thorough research to identify any existing patents or publications that might render your invention non-patentable. This step generally involves conducting a patent search to determine the novelty and uniqueness of an invention. Understanding patentability criteria as per the Indian Patents Act, 1970 will help you avoid potential conflicts and save time and resources.

Preparing the Patent Application

A patent application consists of several components, including a title, abstract, field of invention, background, detailed description, drawings (if applicable), and claims. It is important to provide a clear and comprehensive description of the invention to ensure the application's success. The Manual of Patent Office Practice and Procedure can be a helpful resource for preparing your application.

Filing the Patent Application

Once the application is ready, you can file it with the Indian Patent Office (IPO). There are several types of patent applications, such as Ordinary, Convention, PCT National Phase, and Divisional applications. You can choose the type that best fits your needs. Additionally, you can either file the application online through the e-filing portal or submit it physically at one of the four IPO branches.

India offers two types of patent applications: provisional and complete.

Provisional Application

Inventors may file a provisional application if their invention is still under development. This application establishes an early filing date, granting the inventor a 12-month window to submit a complete specification.

Complete Application

A complete application must be filed within 12 months of the provisional application. It contains a comprehensive description of the invention, including claims and drawings.

Publication of the Patent Application

The patent application will be published in the Patent Journal 18 months after the filing date or priority date, whichever is earlier. This publication allows third parties to review and file oppositions against the application if they believe it infringes on their rights.

Request for Examination

A patent application will not be automatically examined upon filing. You need to submit a Request for Examination (Form 18) within 48 months from the date of filing or the priority date, whichever is earlier. The IPO will then assign your application to an examiner for further review.

Examination and Response to Objections

Upon receiving the examiner's report (also known as the First Examination Report or FER), you must address any objections raised within 6 months. Failure to do so may result in the abandonment of the application. You may also seek an extension of up to 3 months to respond to the FER. It is useful to work closely with a patent attorney during this stage to respond effectively to the objections and secure your patent rights.

Grant of Patent

If the examiner is satisfied with the responses to the objections, they will recommend the patent for grant. The patent will then be published in the Patent Journal, and the grant certificate will be issued. The entire process can take typically anywhere from 3 to 5 years, depending on the complexity of the invention and the efficiency of the examination process. With the fast track examination and early publication options, the process timelines have reduced to around 1 to 2 years.

Renewal of the Patent

To keep the patent in force, you must pay annual renewal fees starting from the 3rd year of the patent term. The first payment is due within 3 months of the patent being granted. The fees can be paid in advance or within six months from the date they become due (with extension fee). Failure to pay the renewal fees may result in the patent being lapsed. Once lapsed, the patent can be restored within a period of 18 months.

Opposition and Revocation

After the publication of a patent application, any person can file a pre-grant opposition. Once the patent is granted, a post-grant opposition can be filed within 12 months from the date of publication of the grant. Additionally, a patent can be revoked under specific circumstances, as detailed in Section 64 of the Indian Patents Act, 1970.