How to apply for Patent for Invention in India

May 15th, 201711:22 am @    


What is Patent?

Patent is a monopoly right awarded by the Patent Authority to an inventor to use their “Invention” subject to the provisions of the patent law for a specified period of time. Invention refers to a new invention of a product or a process, involving an inventive step and which is capable of industrial application that has not been projected by publication in any document or used in the country or anywhere in the world before the date of filing of the patent application.

How to Patent Your Idea?

‘Patentability of an idea’ is one of the usual, debated and most contested questions. As per statute, only inventions are eligible to be patented. The Patents Act 1970 does not mention whether an idea can or cannot be patented. There is a fine line of difference between idea and invention. Every invention is a more processed and evolved form for an idea. In order to get a patent, an invention (whether a product or a process) needs to be novel, industrially useful and non-obvious to a person skilled in the art. Similarly, every idea can also be novel, industrially useful and non-obvious to a person skilled in the art.

Section 10 of the Patents Act 1970 states certain requirements for filing a provisional or complete specification. Every application should include a title that indicates the subject matter of invention. It should completely describe the invention, its operation or use and the method by which it is to be performed. An invention, to be considered for a patent, should be capable of being performed practically. Similarly, if an idea has the capability of being performed and if one has a process of how the idea works, an idea has the potential to develop into an invention and hence filing for a patent.

Who can apply for a patent in India?

An application for a patent for an invention may be made by any of the following persons either alone or jointly:

  1. A person claiming to be the true and first inventor;
  2. A person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application;
  3. Legal representative of any deceased person who immediately before his or her death was entitled to make such an application.

How to get a patent on an invention in India?

The broad steps involved in patent registration in India are as follows:

  1. Organize the background information:Collate and list down as much information as possible about the invention includingarea of invention, what it does, how it works, advantages of the invention, and drawings / diagrams / sketches explaining the working of the invention.
  2. Assess the patentability: As per the Patent Act 1970, all inventions may not be patentable, Inventions that are not patentable include ones that are contrary to law or morality or injurious to public health, are a mere discovery of a scientific principle or the formulation of an abstract theory, etc.
  3. Patentability search: This involvesdiscovering whether the invention meets all criterian as per the Indian patent act, including Novelty, Non-obviousness, Industrial Application and Enabling. Novelty search requires use of a patent professional who carries out an extensive search for any priors across all databases for patent, articles, thesis, etc. and builds a patentability search report.
  4. Deciding to Filea patent application: Based on a review of the patentability search report and discovered closest prior arts for the invention, a decision needs to be taken by the inventor whether to go ahead with patent application filing. It is critical for the invention to have an “inventive step” as compared with existing prior art to qualify for a patent. The inventive step is successfully achieved if the invention has a ‘technical advancement’ or ‘economic significance’ or both over existing prior arts.
  5. Drafting patent application: Drafting a patent application is a specialized job that requires both technical and legal understanding. Hence, hiring a suitable patent professional with the right experience profile is highly advisable.

In case an inventor is at initial stages of R&D, then he or she has the option to file a provisional application. It benefits the inventor in the form of a secure filing date, 12 months of time to file complete specification and lower costs. Once the complete set of required documents is available and the prototype and experimental results to prove the inventive step are available, a complete specification with patent application can be filed.

  1. Filing and publication of patent application: Upon satisfactory review of patent application draft, an inventor can file the patent application, along with appropriate forms with fees payable to the patent office of INR 1,600 / INR 4,000 / INR 8,000 depending upon the type of inventor – natural person / small entity / other than small entity. The application is published after 18 months of first filing.Early publication can be requestedby paying a prescribed fee, in which case the application is generally published within a month from request for early publication.
  2. Request for examination: The application is examined afterthe patent office receives a Request for Examination (RFE). After receiving this request, the controller gives the application to an examiner who examines the patent application against the applicable criteria. The request for examination is to be made within 48 months from the date of filing the application, along with prescribed form and fees.
  3. Responding to objections: The first examination report presented to the controller by an examiner generally contains prior arts similar to the claimed invention, and the same is reported to patent applicant. Most of the patent applicants receive certain objections based on examination report. The best option is to analyze the report along with patent professional and draft appropriate responses.
  4. Grant of Patent: The application is enlisted in order for grant after it is discovered to be meeting all the requirements. The grant of patent is notified in the patent journal which is published from time to time.

Check out how to apply for patent & rules to be followed while applying for one as per the Section 6 of Indian Patent Act 1970.

Also, get the professional legal advice from best lawyers in any city/court in India at affordable cost at lawrato.com

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Nikita is the Co-Founder and Managing Editor of MightyLaws.in. She is a lawyer/author residing in Delhi. She believes that increasing legal awareness is the key to ensure social justice and simplification of law is the means to achieve it. She writes articles on social and political issues for various platforms in English and Hindi.

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