A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent. The patent system in India is governed by the Patents Act, 1970 (No.39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent is given for a period of 20 years from the date of filing of application.

An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act.

An invention is patentable subject to the following criteria:

• It should be novel
• It should have inventive step or it must be non-obvious
• It should be capable of Industrial application
• It should not attract the provisions of section 3 and 4 of the Patents Act 1970

Under the following situations, an invention is not patentable:

• An invention which is frivolous or which claims anything obviously contrary to well established natural laws;
• 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;
• The mere discovery of scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
• The mere discovery of a new form of a known substance which does not result in 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;
• A substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
• The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
• A method of agriculture or horticulture;
• Any process for 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;
• Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
• A mathematical or business method or a computer program per se or algorithms;
• A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
• A mere scheme or rule or method of performing mental act or method of playing game;
• A presentation of information;
• Topography of integrated circuits;
• An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components;
• Inventions relating to atomic energy;

The following documents are required to file a Patent Application in India:

1. Application for grant of Patent in Form-1
2. A proof of right is required from the inventor(s) by way of endorsement in the appropriate paragraph of Form-1
3. Complete specification in Form-2
4. Statement and undertaking under Section 8 (1) in Form-3 (in case of foreign applications)
5. Declaration as to inventorship shall be filed in Form-5
6. If an applicant is MSME/Startup, Form 28 accompanied with appropriate evidence in accordance with rule Rule 2 (fa)/ 2(fb) respectively shall be submitted. In the case of “small entity or startup”, every document for which fee has been specified, shall be accompanied by Form-28
7. Form of Authorization in Form-26 in case there is Power of Attorney
8. Permission from National Biodiversity Authority in case of Biological Inventions

A patent can be applied in India in the following process:

• 1

  Patent Applicant

  A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

• 2

  Patent Application

  A patent application can be filed with Indian Patent Office either with provisional specification or with complete specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the provisional application. There is no further extension of time to file complete specification after expiry of said period.

• 3

  Online Filing

  One can file patent applications through comprehensive online filing system at https://ipindiaonline.gov.in/epatentfiling/goForLogin/doLogin. More information for filing online application is available on the website of Patent Office i.e. www.ipindia.gov.in.

• 4

  Form-1, Form-2 & Other Documents

  To file Patent application, an applicant is required to file Form 1 which is a request for filing an application and Form 2 which is either a provisional or complete specification with drawings, if any. In addition to these, an abstract of the invention is also required. If the application is filed through a registered patent agent, a power of authority in favour of the said agent in Form 26 is also required. However, depending upon various circumstances, following forms may also be required. The application can be examined only after receipt of request for examination on Form 18/18A.

  The following is the step by step online Patent Application filing process in India:

  1. Visit www.ipindia.gov.in and proceed to E-Gateways
  2. Register for New User and creation of user-id
  3. Install Digital Signature Certificate (DSC) and configure the system as per the DSC manual
  4. Login to the e-filing module
  5. Select New Application/Provisional Filing as the case may be
  6. Draft the Form(s) for new application
  7. Upload the PDF version of required documents
  8. Save the draft
  9. Go to the drafted forms
  10. Enter the mobile number, if SMS alert are required
  11. Select the drafted form and proceed for signing of drafted form
  12. After the forms are digitally signed, it is ready for making the payment though the available Payment Gateways
  13. Select the digitally signed form and proceed for payment
  14. Select the payment gateway (NTRP-Bharatkosh payment gateway)
  15. Select the bank and payment mode to make the payment of fee
  16. After making payment, the acknowledgement receipt would be generated
  17. Submitted Forms would then proceed to the respective section of the Patent Office for processing and official actions
• 5

  Examination by Patent Office

  The Patent Office scrutinizes the Patent application with regards to Jurisdiction, Proof of Right, Documents whether they are in order or not and other particulars of the application. After examination, the Patent office issues an examination report to the applicant which is generally known as First Examination Report (FER). Thereafter the applicant is required to comply with the requirements within a period of 6 months from the date of FER which can be extended by 3 months. In case, the application is found to be in order for grant, the patent is granted, provided there no pre-grant opposition is filed or pending. A letter patent is issued to the applicant. However, in case a pre-grant opposition is pending, the further action is taken after disposition of the pre-grant opposition. If the applicant does not file a reply within 6 months or does not take an extension of 3 months, the application is deemed to have been abandoned.

• 6

  Certificate of Registration

  If the Controller of Patent satisfies that the Patent application has no discrepancy, he may accept it and issue the Certificate of Registration and then publish in Patent Journal. After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed in the schedule I. For first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will be ceased. The patentee has choice to pay the renewal fees every year or he can pay in lump sum as well.

• 50% concession on Patent filing fee is available for MSME entities applying for Patent;
• 80% concession on Patent filing fee is available for entity which got STARTUP INDIA recognition.

The types of applications that can be filed are:

• 1

  Provisional Application

  Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a priority date of the invention. Further, the inventor gets 12 months’ time to fully develop the invention and ascertain its market potential and to file the complete specification.

• 2

  Ordinary Application

  An application for patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. Such type of application is known an ordinary application.

• 3

  Convention Application

  An application for patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries is known as a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.

• 4

  PCT International Application

  An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty is an international application which can be filed in more than 150 countries by a single application.

• 5

  PCT National Phase Application

  When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.

• 6

  Patent of Addition

  When an invention is a slight modification of the earlier invention for which he has already applied for or has obtained patent, the applicant can go for patent of addition if the modification in the invention is new. One of the benefits of filing patent of addition is that there no need to pay separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.

• 7

  Divisional Application

  When an application claims more than one invention, the applicant on his own or to meet the official objection on the ground of plurality or distinct invention may divide the application and file two or more applications, as the case may be for each of the inventions. This type of application, divided out of the parent one, is known a Divisional Application. The priority date for all the divisional applications will be same as that of the main (the Parent) Application (Ante-dating).

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Our clients have access to free support from an expert team. We are always on standby to help. If you need assistance at any point before, during, and after the registration of your company, you will be able to reach us by telephone or email.

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