Patent registration in India grants exclusive rights to an inventor for a new product or process that is inventive and capable of industrial application. This right prevents others from making, using, selling, or importing the patented invention without the patent holder’s permission for a period of 20 years from the date of filing the application.
The patent system in India is governed by The Patents Act, 1970, and The Patents Rules, 2003, and is administered by the Office of the Controller General of Patents, Designs, and Trademarks (CGPDTM).
Criteria for Patentability in India
For an invention to be patentable in India, it must generally satisfy three key criteria:
Novelty
The invention must be new. It should not have been published anywhere in the world or publicly used in India before the patent application’s filing date (or priority date).
Inventive Step (Non-Obviousness)
The invention must involve an “inventive step,” meaning it is not obvious to a person skilled in the art (someone with average knowledge and skill in the relevant field). It should show a technical advance or economic significance, or both, compared to existing knowledge.
Industrial Applicability (Utility)
The invention must be capable of being made or used in an industry. It must have practical utility.
Additionally, the invention must not fall under the categories of non-patentable inventions as specified in Sections 3 and 4 of the Patents Act, 1970 (e.g., mere discovery of a scientific principle, a method of agriculture or horticulture, a literary or artistic work, a method of performing a mental act or playing a game, a computer program per se, a mere scheme or rule, or a presentation of information).
Step-by-Step Patent Registration Process in India
1. Invention Disclosure & Idea Incubation
- Document your invention thoroughly, including its problem, solution, how it works, and its advantages. Maintain meticulous records (e.g., a bound lab notebook with dated entries and witness signatures).
2. Patentability Search (Highly Recommended)
- Before investing significant time and money, conduct a comprehensive “patentability search” (also known as a novelty search or prior art search). This involves searching global patent databases and non-patent literature to identify any existing inventions similar to yours.
- Purpose: To assess whether your invention meets the novelty and inventive step criteria. This helps in understanding the likelihood of your patent being granted and can save costs if your invention is not patentable.
- You can use public search tools on the IP India website or engage a patent professional for a more in-depth search.
3. Drafting the Patent Specification
- This is arguably the most crucial step and is highly specialized. A patent application is a “techno-legal” document.
- Provisional Specification (Optional but Recommended): If your invention is still in development, you can file a provisional specification (Form 2). This secures a “priority date” for your invention, which is important in a “first-to-file” system like India. A provisional specification describes the invention in general terms but does not require claims.
- Advantage: Gives you 12 months to further develop your invention and file the complete specification.
- Requirement: A complete specification must be filed within 12 months of the provisional filing date; otherwise, the application will be deemed abandoned.
- Complete Specification (Form 2): This is a detailed and comprehensive document that fully describes your invention. It typically includes:
- Title of the invention.
- Field of the invention.
- Background of the invention (prior art and its drawbacks).
- Summary of the invention.
- Detailed description of the invention: How it works, various embodiments, best method for performing the invention.
- Drawings/Diagrams (if applicable): Illustrations to explain the invention.
- Claims: These are the most critical part, legally defining the scope of your invention for which protection is sought. They must be clear, concise, and define the boundaries of your invention.
- Abstract: A concise summary of the invention.
- Patent Professional: It is strongly advised to hire a patent agent or attorney for drafting, as it requires both technical understanding and legal expertise in patent law.
4. Filing the Patent Application
- Forms Required:
- Form 1: Application for Grant of Patent.
- Form 2: Provisional or Complete Specification (prepared in step 3).
- Form 3: Statement and Undertaking under Section 8 (if you’ve filed or intend to file a corresponding patent application in any other country, you must keep the Controller informed).
- Form 5: Declaration as to Inventorship (declaring the true and first inventor(s)).
- Form 26: Power of Attorney (if filing through a patent agent).
- Form 28 (if applicable): To be submitted by small entities/startups/educational institutions to avail reduced fees.
- Where to File: Applications can be filed online (e-filing via www.ipindia.gov.in) or physically at the appropriate Patent Office branch (Chennai, Delhi, Mumbai, or Kolkata) based on the applicant’s or agent’s jurisdiction.
- Fee Payment: Pay the prescribed government fees (which vary based on applicant type, number of pages, and number of claims).
- Forms Required:
5. Publication of Application
- Your patent application is generally published in the official Patent Journal after 18 months from the date of filing (or priority date, whichever is earlier).
- Early Publication (Optional): You can request early publication by filing Form 9 with the prescribed fee. If requested, the application is usually published within one month.
- Purpose: Once published, the invention details become public knowledge. This also opens a window for “pre-grant opposition.”
6. Request for Examination (RFE)
Your application will not be examined automatically. You must file a “Request for Examination” (RFE) in Form 18 (or Form 18A for expedited examination) within 48 months from the date of filing the application or the priority date, whichever is earlier.
- Expedited Examination (Form 18A): Certain categories of applicants (e.g., startups, small entities, applicants choosing India as an International Searching Authority/International Preliminary Examining Authority in PCT applications, or those eligible for the PPH program) can request expedited examination.
7. Examination of the Application
- A Patent Examiner conducts a thorough search for prior art and examines your application for novelty, inventive step, industrial applicability, and compliance with other provisions of the Patents Act and Rules.
- First Examination Report (FER): If objections are found, the examiner issues an “Examination Report” (FER). This report details the objections (e.g., lack of novelty, obviousness, clarity issues, non-patentable subject matter, etc.) and lists relevant prior art.
8. Response to Examination Report / Office Actions
- You must file a comprehensive reply to the FER within 12 months from the date of issuance of the FER.
- Content of Reply: Address each objection raised by the examiner with legal arguments, technical explanations, and, if necessary, amendments to the claims or specification. You may also provide evidence (e.g., experimental data).
- Hearing (if necessary): If the examiner is not satisfied with the written response, a hearing will be scheduled. You or your agent will present arguments verbally to resolve the remaining objections.
9. Pre-Grant Opposition (Optional)
- Any third party can file a “pre-grant opposition” after the publication of the application and before the grant of the patent. This is a mechanism for a third party to challenge the patentability of your invention before it’s granted.
10. Grant of Patent
- If all objections are successfully overcome, and the application is found to be in order for grant, the patent will be granted by the Controller of Patents.
- The grant of the patent is then published in the Patent Journal, and a “Certificate of Grant” is issued.
11. Post-Grant Opposition (Optional)
- Even after the patent is granted, any “interested person” can file a “post-grant opposition” within 12 months from the date of publication of the grant of the patent in the Journal.
Documents Required for Patent Application
- Form 1: Application for Grant of Patent.
- Form 2: Provisional or Complete Specification.
- Form 3: Statement and Undertaking under Section 8 (regarding foreign patent applications).
- Form 5: Declaration as to Inventorship.
- Form 26: Power of Attorney (if represented by a patent agent).
- Drawings/Diagrams: If applicable, to illustrate the invention.
- Abstract: A summary of the invention.
- Priority Documents: If claiming priority from an earlier filed foreign application (e.g., under the Paris Convention).
- Proof of right to file: Document showing how the applicant has the right to file (e.g., assignment deed from inventor to applicant company).
- Form 28: For small entities/startups/educational institutions (to avail reduced fees).
Fees for Patent Registration
The official government fees vary based on the applicant type (Natural Person/Startup/Small Entity/Educational Institution vs. Others/Large Entity) and the mode of filing (online vs. physical), and also on the number of pages and claims.
Illustrative Fees (approximate, for e-filing, minimum pages/claims):
The patent registration process is complex and highly technical. Get help from our experts to navigate the intricacies of drafting, filing, responding to office actions, and ensuring the strongest possible protection for your invention.