Indian Intellectual Property Office (Controller General of Patents, Designs, and Trademark) is trying their best to make patent filing as user-friendly as possible.In this article, I am not going to explain “Working process of Indian Intellectual Property Office” but I will definitely provide you best knowledge on How to file a patent in India.
After reading this article, You will be able to understand:
I. What is a Patent and How to perform Patent Prior Art Search in India?
Ii. Drafting a Patent.
Iii. Publication of Application.
Iv. Request for Examination.
V. Respond and Clearing Invention.
Vi. Grant of Invention.
In this 6 points, you will understand Patent Filing Procedure in India. Ok, Let get started:
Steps to File a Patent in India:
i.) What is Patent and How to Perform Patent Prior Art Search in India?
I received many questions like this from new inventors. They are always curious about their new inventions and they want to explain the whole invention in one step and they want to patent whole concept as soon as possible. But it is not possible. “Patent Registration” is a long process. It takes time.So, What is Patent ?. Do you know something about the patent? I think if you are reading this article you are curious about protection your invention and you definitely have read various articles on Patent Process. So, let start from basic→
What is a Patent
The word patent is the most searchable queries among researchers, inventors, and business development community. A “patent” is an exclusive licence granted by Intellectual Property Offices to inventors, to exclude others from making, selling or using the invention.It has protection period of 20 years from the date of filing it. It means once a patent is granted, it will be valid for 20 years and after that, it will be available in “public domain”.
Patent Prior Art Search
Before doing Patent Prior Art Search, You must→
B. "One Picture Worth Ten Thousand Words".Try to include as many drawings as possibles in your invention.
C. P.S.M (Patentable Subject Matter)
Section 3 of Indian Patent Act, 1970 describes “Invention not patentable”.You must make sure that you your invention does not fall in this category.If you are not sure, contact Your Registered Patent Attorney as soon as possible.
The following are not inventions within the meaning of this Act--
(a) an invention which is frivolous or which claims anything obviously contrary to well-established natural laws;
(b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
(c) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
(g) Omitted by the Patents (Amendment) Act, 2002
(h) a method of agriculture or horticulture;
(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
(j) plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
(k) a mathematical or business method or a computer programme per se or algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information;
(o) topography of integrated circuits;
(p) an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
4. Inventions relating to atomic energy not patentable.—No patent shall be granted in respect of an invention relating to atomic energy falling within sub section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962).
5. Inventions where only methods or processes of manufacture patentable: [Omitted by the Patents (Amendment) Act, 2005]
If you satisfy the points mentioned above, then you can perform patent prior art search→
Patent Prior Art Search is an important step before filing a patent in India. It will tell you whether your invention is already present or not. Please stop working on your invention, it is present on the web or elsewhere. Your invention will be judged by Patent Examiners on three basis→
During Patent Prosecution, Your invention must follow these points. Else, Patent Examiners directly disqualify your invention.Therefore, It is suggested to perform patent prior art search by Patent Professionals and Qualified Attorneys.
After Patent Prior Search, a report will be generated. This report will decide whether to go ahead or not. If your invention is novel, non obviousness, and industrial application and enabling then there is no need to worry.
ii.) Drafting a Patent
According to Indian Patent Office, There are two types of Patent specifications→
Provisional Patent Specifications is used to secure filing date else nothing. It is not necessary to include the claims in provisional patent specifications. It will give you 12 months of time to filing complete patent specifications. It is an optional step but a very important step. If you are dead sure about your invention and 100% ready then you can directly apply for Complete Patent Specification.
Complete Patent Specifications contains→
Every complete specification must
(a) fully and particularly describe the invention and its operation or use and the method
by which it is to be performed;
(b) disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection;
and (c) end with a claim or claims defining the scope of the invention for which protection is claimed;
(d) be accompanied by an abstract to provide technical information on the invention:
iii) Publication of Application
According to Section 11A of Indian Patent Act, 1970 An Application is published after 18 months of the first filing date. You can also apply for early publication request, to publish the application before 18 months of the first filing date.There is a prescribed fee for that purpose.
iv) Request for Examination
A patent shall be examined when the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period.It is a very important and crucial step for your invention because your invention will be checked by patent examiners and it will decide whether your invention will be granted or rejected.It is also called patent prosecution. In this step your invention will be judged on→
After that, First Examination Report will be created by Patent Examiners and submitted to the controller ( contains prior arts). One copy is also forwarded to the applicant for future references purposes.
V) Respond and Clearing Objections→
After Request For Examination, An inventor may receive some objections from controller general of patent, designs, and trademarks. It is required to clear these objections. In the first instance, it is not possible for the inventor to clear all objections. Therefore, It is suggested to use the services of Registered Patent Attorneys. After that, An inventor with his attorney or an inventor itself has to prove novelty in his/her invention. If controller satisfies with the inventor and found uniqueness, novelty and industrial application in the Patent, there are fair chances that inventor gets approval and invention may be granted.
vi) Grant of Invention
After clearing all objections, An inventor will receive Patent Grant and the invention will be published in the patent journal.
Now comes the important part:
There exist several terms which can reduce your filing costs such as Household incomes, Small Entity/ Large Entity etc. Also, Patent Prosecution is a crucial step in deciding whether you will get patent or not. Also, It is directly proportional to Patent Infringement Cases. You can do it alone but I would definitely suggest you use the services of Registered Patent Attorney in India.
Technical writing is a necessary step in drafting and filing the patents. Preparing the claims also involves some legal skills that professional writer must learn. I have experience in Technical Writing which gives me an edge to perform well in Intellectual Property Law especially Patent Law.
I'm a former Freelance Technical Writer.
Currently,I'm practicing as an IP and Cyber Law, Attorney in India
From Now (Nov 2017), I will update you only about IP and Cyber Law related issue on this blog.
I love to write Technical as well as Legal stuff.It gives me immense pleasure to present my unique ideas in front of my blog readers.
I have extensive experience in writing Technical articles for Websites, On page SEO for Amazon listings, Article Rewriting, Cyber Security topics, Security Company Business Plan, etc.