LAW YOG

Step by Step Procedure for filing Patent in India

Share This:

     Respect for inventors is the key for success of a patent system.

As India is slowly moving towards becoming an innovation hub of Asia, the patent filing has suddenly gained momentum. New innovators and start-ups are keen to get their innovations patented in order to protect and safeguard them from the infringement and potential market competitors and in order to enjoy Monopolistic and exclusive business gains. This has led to an increase in awareness about patent filing and its importance in society.

The system of Patenting inventions was introduced in order to encourage and motivate the inventors by awarding them with exclusive rights over their inventions for a specific period of time. During this period, the investor could enjoy all the benefits of his hard work. Today, the patenting system has undergone a lot of changes and improvements, making it a very complex and diverse system.

What is Patent?

A patent refers to a legal document which is granted to an inventor by the patent office which aims to protect the subject matter seeking protection. A patent is granted for an invention and it is considered as an exclusive right negotiated by the government on an inventor, in order to prevent others from exploiting the patent without the inventor’s permission. A patent lays out a right to an inventor to eliminate others from exploiting the patented invention. Before, other than the inventor no one can use, make or sell the patented invention without the permission of the inventor. This is why it is considered as an exclusive right of the invention. This acts as a protection of the invention from unauthorized use and also aims to give a monopoly to the creator and derive maximum benefit from it.

 These exclusive rights include:

  1. The inventor can enjoy monopoly rights over his invention.
  2. This right stops others from making, using, selling, importing, offering for sale or distributing the patented invention without the inventor’s permission. Violation of this gives a right to the inventor to sue.
  3. This grants a right to the inventor to monetize his patent by selling or licensing.

Different types of Patent Applications

  1. Ordinary or non-provisional application
  2. Convention application
  3. Provisional application
  4. Patent of addition
  5. Divisional application
  6. National phase PCT application

Benefits of getting a Patent

The whole process of filing a patent is very long and complex but it is very important to have a patent for your invention. With all the new technologies and digital advancements, it is possible that the process might get simplified and easy by the time. Having a patent ensures that no individual can claim rights over the invention, if at all this happens to be an infringement, the inventor can take help from legal bodies and overcome the difficulties and problems that can prove to be a hurdle in their growth and development.1 

Some of the benefits are:

  1. Freedom of exclusivity
  2. Strong market position
  3.  Higher returns on investment
  4.  opportunity to license or sell the invention
  5. Positive image for the enterprise
  6. Prevents theft of your invention
  7. Easy to build a merchandise and commercialize
  8. More monetary value since your idea becomes a brand
  9. Avoids duplication
  10. Identifies emerging technologies, emerging areas
  11. Act as an important source of scientific and technical literature
  12. Paves way for further discoveries

Who can file a Patent Application?

The application can be filled either solely or mutually:

  • By any person claiming to be true and first inventor(s)
  • By any person being the agent of person claiming to be true and first inventor(s) by submitting the proof of assignment with the application
  • By the legal representative of any deceased person.

Where to file a Patent Application?

There are two ways to file a patent application:

1. Physical filing

A patent application needs to be filled at the counter of the jurisdictional patent office. It can be submitted at the appropriate patent office under the jurisdiction he normally resides or has his place of business or the place from where the invention was actually generated.

2.  E-filing

E-filing refers to electronic filing; this can be done using the e-filing portal of the patent office with the help of an Internet connection.

Some important Considerations before filing an Application for Patent

Documentation of the Invention

The first and the foremost important consideration is documentation of the invention highlighting the novel elements compared to the existing technical difficulties and solutions to overcome the difficulties.

·  Novelty search to assess chances of getting a patent.

Secondly it is important to perform a patent search or novelty search to ensure that the idea is worth proceeding to apply for a patent. Even if the invention is not found to be novel by the means of patent search prior to that, documentation can be used to define the invention before proceeding with the patent filing.

· Confidentiality of the invention

This is an important concentration since the invention has to be novel on the date of filing. It is essential to maintain the confidentiality of the idea till the patent application is filed .

·  Jurisdiction of foreign filing.

Finally, it is absolutely essential to have clarity on the countries you will be filing for the patent as the patent filing is an expensive process. Selecting a jurisdiction very carefully can actually save a lot of time and money.

Criteria for getting a Patent

To understand this we must know the difference between invention and discoveries. Discovery means finding something that already exists but which no one knew about earlier while the invention is making a new thing which doesn’t exist earlier using the currently available knowledge.

Having understood that we must remember that patent is granted for inventions and not discoveries

Furthermore, the invention must meet the following criteria before it is granted a patent. These are

1.   Novelty

Novelty is the first requirement of patent availability. It means a patent cannot claim something that already existed or the invention should not have been anticipated by publication claimed in any document used in the country or elsewhere in the world.

2.   Inventive step

The second requirement to get a patent is an inventive step. It is one of the most complex aspects of patent law. It means that the invention should take technology one step ahead and should not be a replica or repetition of some previous invention

3.   Industrial use

The third criterion for getting a patent is Industrial application. This means that the invention should be capable of being used commercially

Step by step procedure to apply for patent in India

STEP1: Patent Searches

It is always considered safe to do patent searches prior to patent application filing. If an invention is found in previous arts or closes to prior arts then the novelty of that invention can be questioned by the Indian Patent Office. Therefore, it is important to perform prior art searches in order to save the money and time of an applicant.

STEP 2: Patent Drafting

The invention is generally written in a techno-legal language known as the specification which can be with or without claims. The specification includes the field of invention, detailed description of the invention with working examples and the best method to perform an invention so that a person skilled in the art can perform the invention.

STEP 3: Patent Application Filing

Procedure Patent Registration application filed as a provisional application is generally filed to claim priority date over other applications. A patent application consists of a number of forms prepared according to the Indian Patent Act, 1970. The drafted provisional that is the complete specification is to be filed in Form-2 of the Indian Patent Act, 1970.  A provisional patent application is filed within 12 months after filing complete specification. There are 6 different kinds of filing filed in the Indian Patent Office. These are:

1.    Ordinary application

2.    PCT National phase application

3.    PCT International application

4.    Convention application

5.    Divisional application

6.    Patent of addition application

STEP 4: Publication of Patent Application

Once the Procedure Patent Registration in India has been filed, then after the expiry of 18 months from the date of filing or date of priority whichever is earlier, the application is published in an official journal and is open to the public. This is a chance given to the public to raise an objection if any.

STEP 5: Examination of Patent Application/Patent Prosecution

The patent application is studied only when a request for examination has been filed. The request for examination has to be filed within 48 months of the application filing date or date of the priority. The patent examiner examines a patent application and issues an examination report. The examination report contains a series of objections raised by an examiner. The response to an examination report has to be filed within 12 months of the issuance of the examination report. If required, the examiner can call the applicant or his agent. This phase is called patent prosecution.

STEP 6: Grant of a Patent

After all objections to the examination report have been compiled and the examiner is satisfied with the reply of an applicant, the application is put in order for grant. On the other hand, if the examiner is not satisfied with the reply and arguments of an applicant, then he/she can reject the application.

Conclusion

The patent, are one of the several intellectual properties recognized worldwide, form the most important element of economic development of individuals as well as county’s. The idea of patent as an instrument of justice to the inventor has been advanced and rewarding and inventive seems to define the legal protection of patents. However, every inventor may not benefit, but the protection in the form of a monopoly over an invention enables the inventor to get the economic benefits. The current debate over patent protection tends to concentrate on the role of patent as an instrument of economic policy and development. The economical, social and cultural development of nations and societies now depend more on intellectual resources rather than materials or natural resources

Endnotes

1.   Bishwanath prashad radhey Shyam v. Hindustan metal industries

avatar

Vani Parashar

Student, Amity University NOIDA

Vani Parashar is a 3rd-year law student at Amity University, Noida. As a law student, She has taken part in different fields like youth parliaments, debates, MUNs and event organisation. She is a well-rounded individual who lives with passion, dedication and grace and this is what sets her apart from anybody else.

One thought on “Step by Step Procedure for filing Patent in India

Leave a Reply

Your email address will not be published. Required fields are marked *