A patent in India is a form of intellectual property that gives the holder exclusive rights to prevent others from making, using, selling, and importing an invention for a certain number of years, typically 20 years from the date of filing. In order to be eligible for a patent in India, an invention must be new, useful, and non-obvious. Additionally, it must not fall under certain categories of subject matter that are not eligible for patent protection, such as discoveries, scientific theories, mathematical methods, certain methods of agriculture and horticulture, and plants and animals.
The Indian Patent Office, a division of the Department of Industrial Policy and Promotion (DIPP) is responsible for receiving, examining and granting patents in India. Applications for patents in India can be filed online. After examination, if the application is found to be in order and patentable, the Patent Office will grant a patent and publish it in the Official Gazette.
Let us know about the different types of patent applications to clarify our process of filing patents in India.
Types of patent application
There are several types of patent applications that can be filed, depending on the stage of development of the invention and the type of protection sought. The most common types of patent applications include:
Provisional Patent Application
A provisional patent application is a preliminary version of a patent application that is filed to establish an early effective filing date for an invention. It allows inventors to test the market for an invention and to seek funding before committing to the time and expense of a non-provisional patent application. Provisional patent applications have less formal requirements but need to be converted into a non-provisional application within 12 months from the date of filing.
Non-provisional Patent Application
A non-provisional patent application is a complete patent application that includes all the details of the invention and all the formal drawings, specifications and claims. It is the most common type of patent application and is filed after the provisional application. Once the non-provisional application is filed, it will go through the examination process, after which the patent will be granted if all the requirements are met.
PCT International Patent Application
PCT stands for Patent Cooperation Treaty, which is an international patent law treaty that allows for the filing of a single patent application that can be used to seek patent protection in multiple countries. It can be filed after the non-provisional application.
Continuation Patent Application
A continuation application is filed when an inventor wishes to add new claims or to make other changes to a patent application that has already been filed. Continuation applications are typically used when an inventor wants to make changes or additions to the original application, such as to include new claims or to add a new invention.
Divisional Patent Application
A divisional application is filed when an inventor has filed a patent application that contains multiple inventions and the patent office has determined that more than one patent may be granted for the invention.
The type of patent application will depend on the specific circumstances of the invention and the inventor’s goals and objectives. It’s important to consult with a patent attorney or agent to determine the most appropriate type of patent application for your invention.
The process to file the patent in India
The process of obtaining a patent in India involves several steps and can take several years to complete. Here is an overview of the process:
Conduct a prior art search
Before filing a patent application, it’s important to conduct a prior art search to ensure that your invention is novel and non-obvious. This will help you to understand if your idea is already patented or published by others and if there are similar ideas that can be an obstacle to getting a patent.
A prior art search, also known as a novelty search, is an essential step in the process of obtaining a patent. The purpose of a prior art search is to determine whether an invention is novel and non-obvious, and therefore eligible for a patent. It involves searching for any existing knowledge or technology that is similar or identical to the invention in question.
The search is conducted to identify any existing patents, publications, products, or other forms of prior art that may affect the patentability of the invention. This can include patent documents, scientific and technical publications, university theses and dissertations, as well as other forms of prior art that are available on the internet or in libraries.
Prior art search can be done by searching databases such as the US Patent and Trademark Office, European Patent Office, World Intellectual Property Organization, and Indian Patent Office etc.
The scope of the search depends on the nature of the invention and the resources available. The search can be done in-house or by a specialized search firm.
Conducting a prior art search can help you identify any existing patents, products, or publications that may be similar to your invention. This information can be used to determine the likelihood of obtaining a patent, as well as to identify any potential issues or obstacles that may need to be addressed in the patent application process.
It’s important to note that a prior art search is a complex process and it may require the services of a professional patent searcher or attorney to perform. But even with professionals, the prior art search can never be 100% complete, as there may be some unknown prior art that can be revealed after the patent is granted.
Can idea be patented in India?
Prepare the patent application
Once you have determined that your invention is eligible for a patent, you will need to prepare a patent application. The application should include a detailed description of the invention, how it works, and how it is novel and non-obvious. It should also include any drawings or diagrams that will help explain the invention.
File the patent application
The patent application must be filed with the Indian Patent Office. The application should include all required documents such as formal drawings, the patent specification, and claims.
The patent application should include the following parts:
- Title of the invention
- Description of the invention including technical field, background, summary of the invention, detailed description, and drawings
- Claims
- Abstract
- Information about the inventor/applicant
It is important to note that the patent application process can be complex and time-consuming, and it may require the services of a patent attorney or agent to ensure that the application is properly prepared and filed. Additionally, the process and requirements for patent application vary from country to country and it’s important to research and consult the national patent office for more information.
Examination of patent application
After the patent application is filed, it will be examined by a patent examiner to determine if it meets the requirements for patentability. This includes checking for novelty, non-obviousness, and usefulness.
Publication of patent application
Once the patent application passes the examination process, it will be published in the Indian Patent Office Gazette. After the publication, any person can file an opposition within a period of 4 months against the grant of the patent.
Grant of Patent
If there is no opposition or the opposition is overcome, a patent will be granted.
Maintenance Fees
To maintain the validity of a granted patent, a maintenance fee is required to be paid regularly to the Indian Patent office.
The entire process from filing the patent application to granting of the patent takes around 3-5 years. This can vary depending on the complexity of the invention and the workload of the patent office. It’s also important to note that the process of obtaining a patent in India can be time-consuming and costly, so it is important to carefully evaluate whether obtaining a patent is worth the cost and effort before beginning the process. It is also recommended to consult with a patent attorney or agent who can help navigate the process and ensure that the application is properly prepared and filed.
Conclusion
It is important to note that the process of obtaining a patent can be complex and time-consuming, and it may be helpful to work with a patent attorney or agent to navigate the process.