What is a Patent?
A patent is an exclusive legal right granted for an invention, which may be a product or a process, under the Patents Act, 1970. According to the Act, an invention is defined as “a new product or process involving an inventive step and capable of industrial application.” To qualify for patent protection, an invention must meet the following patentability criteria:
- Novelty: The invention must be new, meaning it should not have been disclosed to the public in any form prior to the patent application filing date.
- Inventive Step: The invention must involve a technical advancement or be non-obvious to someone skilled in the relevant field, demonstrating a distinct improvement over existing knowledge or practices.
- Industrial Applicability: The invention must be capable of being used or manufactured in any industry, thus demonstrating its practical utility.
- Not Prohibited under Sections 3 & 4 of the Patents Act: The invention must be legally eligible for patenting.
Only when these criteria are fulfilled does an invention become eligible for patent protection under the Patents Act, 1970.
Introduction to Patents
Patent registration is essential for exercising exclusive Intellectual Property Rights over an invention or process as per the Patents Act, 1970. Therefore, understanding the patent grant process is crucial. This guide provides a comprehensive overview of the process for securing a patent in India.
The process begins with an idea for an invention or process. After ensuring there is no prior similar invention (through a ‘Prior Art Search’), an application can be filed with the ‘Controller’ by any person falling within the ambit of Section 6 of the Patents Act, either with a complete or provisional specification of the invention, as per Section 10.
Types of Patent Applications
Patent applications can be categorized based on their purpose and term of protection:
- Provisional Application: This application provides temporary protection for up to one year while the invention is still under development. It allows the inventor to secure an early filing date without the risk of losing patent rights.
- Complete Application: Filed either directly or after a provisional application, this provides long-term patent protection.
Patent applications are further classified into the following types:
- Ordinary Application: Filed to secure patent rights within India.
- PCT National Phase Application: This allows entry into the international Patent Cooperation Treaty (PCT) process, enabling patent protection in multiple countries.
- PCT International Application: Represents the initial stage of the PCT process, allowing applicants to file for patent protection globally.
- Convention Application: Filed to claim priority from a previously filed application in a convention country, allowing the extension of rights internationally.
- Divisional Application: Filed when a single patent application covers multiple inventions, allowing the applicant to divide it into separate applications.
- Patent of Addition: Filed to protect improvements or modifications to an already patented invention.
Documents Required for Filing a Patent Application in India
To file a patent application under the Patents Act, 1970, the following key documents are necessary:
- Form 1 – Application for Patent Grant: Provides details about the inventor(s), including personal information, title of the invention, and the applicant’s status (individual or entity). Start-ups or small entities filing for patents must also submit Form 28 to avail fee reductions.
- Form 2 – Provisional/Complete Specification: Contains a detailed description of the invention. If a provisional specification is filed, the complete specification must be submitted within 12 months, as per Section 9(1).
- Form 3 – Statement and Undertaking: Must be filed by inventors applying for patents internationally, disclosing foreign applications and committing to informing the Controller of future filings in other countries.
- Form 5 – Declaration of Inventorship: Required under Section 10(6) to confirm the inventors’ status.
- Form 26 – Power of Attorney: If a patent agent is representing the inventor, this form must be filed to authorize the agent to act on their behalf.
Steps to Register a Patent in India
The patent registration process in India involves several key stages:
- Developing an Invention: The invention should be documented with relevant details, including diagrams and mechanisms. It should not fall under exclusions listed in Section 3 of the Patents Act.
- Conducting a Patent Search: Before filing, a prior art search must be conducted to ensure the invention’s novelty.
- Drafting the Patent Application: The patent application must clearly define the invention, include specifications, and a description of its functioning.
- Filing the Patent Application: Applications can be filed either electronically or physically, with relevant forms and fees.
- Publication of the Application: Patent applications are automatically published 18 months after filing, though early publication can be requested via Form 9.
- Request for Examination: The applicant must request examination through Form 18 (or Form 18A for expedited examination). The First Examination Report (FER) is issued within three months.
- Addressing Objections: If objections are raised, they must be addressed with clarifications and amendments within six months.
- Grant of Patent: After resolving objections, the patent is granted and published in the Patent Journal.
Publication, Pre-Grant, and Post-Grant Processes
Once published, the public can file pre-grant opposition under Section 25(1). After examination, a patent may be refused or granted. Post-grant opposition can be filed under Section 25(2) within one year of grant.
Conclusion
Patent registration is essential to secure exclusive rights to an invention for 20 years. The process, though lengthy, is critical for protecting the inventor’s rights. Inventors must ensure their invention is novel, involves an inventive step, and is capable of industrial application. Early patent protection is vital to safeguard against infringement. Our IPR experts can guide you through the process for successful patent registration.
This guide on the patent process in India was authored by Ayush Chaudhary and expertly edited by Cheshta Baghel.