How to get Patent Registered in India: Step-by-Step Guide

  

A patent is a protective right granted for creation, a product, or a technique that generally gives a new technological solution to a problem or proposes a unique way of doing something. Scientific information concerning the innovation must be made publicly available in a patent application to get a patent. The Patents Act, 1970 came into effect in 1972, updating and combining the old patent law in India. The Patents Act of 1970 was changed again in 2005 by the Patents (Amendment) Act, which expanded the scope of product patents to include food, pharmaceuticals, chemicals and microorganisms. A novel product or process that requires an inventive phase and is capable of industrial use is defined as an invention under section 2(1)(j) of the Act.

The term “industrial application” refers to an innovation that may be manufactured or employed in industry. One of the invention's requirements is that it be novel, which means that the technology submitted for patenting is not in the public domain or part of the state of the art. Section 2(m) of the Act defines the word “patent.” The clauses pertaining to Exclusive Marketing Rights (EMRs) have been deleted as a result of the modification, and a provision allowing for the issue of a compulsory licence has been added. Pre-grant and post-grant opposition measures have also been added to the law.

In India, a patent can be applied to a creative product or technique that involves an innovative step and is capable of industrial use. It must not, however, fall into the category of non-patentable innovations as defined by sections 3 and 4 of the (Indian) Patents Act, 1970. The Patent Act is largely based on the suggestions of the Ayyangar Committee, chaired by Rajagopala Iyengar, in their report Justice Ann. Allowing process patents for inventions linked to pharmaceuticals, medications, food, and chemicals was one of the recommendations. A patent application can be submitted in India by the true and original inventor or his assignee, either alone or jointly. The legislation’s major goal was to foster the development of innovative and beneficial products, as well as to encourage inventors to divulge their innovations and make them available to the public.

STEPS TO FOLLOW TO GET A PATENT REGISTERED IN INDIA

According to Section 7 of the Patents Act, 1970 “Every application for a patent shall be for one invention only and shall be made in the prescribed form and filed in the patent office.”

Step 1 - Phase of Idea Incubation

“Everything begins with an Idea” is a quote by Earl Nightengale. It simply explains the crux of the first phase of patent registration. In this stage, one should capture the concept correctly, clarify each component of the unique idea, and fill in the blanks with suitable study and experimentation. Include pictures, schematics, or sketches that demonstrate how the invention works. The drawings and diagrams should be created so that visual illustrations can better explain how the innovation works. They play a crucial function in comprehending your creation. When fully capturing the original idea with all technical specifications, one should do a preliminary search. This search aims to answer queries that will help create a functioning invention disclosure. This must be the most crucial step for an investor since it transforms an idea from the ideation stage to a workable innovation disclosure addressed by a patent agency or attorney. The concept incubation step results in constructing a functioning invention disclosure that comprehensively covers all elements of the innovation. And which is now flexible enough to deal with a patent expert.

Considering India is a party to both the Paris Convention for the Protection of Industrial Property (1883) and the Patent Cooperation Treaty (PCT) (1970), a foreign corporation can use either of these treaties to file a patent application in India.

Step 2 - Search for Patentability

The patent agent or attorney working on your idea will assist you in determining the innovation fits all of the patentability standards. Novelty, non-obviousness, and industrial use are some characteristics to consider. The patentability search aims to determine the invention’s novelty and non-obviousness; the search identifies the closest possible prior arts (known to the public) relating to your vision. Based on the results, a patent professional’s opinion on the invention’s patentability may be provided. Depending on the findings obtained and examined in a patentability search report, a patentability opinion may be favorable, unfavorable, or neutral. If one receives a reasonable patentability opinion, one has a strong possibility of getting the innovation patent awarded.

The patentability report and opinion might assist and decide whether to pursue a patent or not; the chances are that what one believed was innovative has previously been patented or is public knowledge in some form. As a result, this report spares the inventor a lot of time, effort, and money by assisting him in deciding whether or not to pursue the patent application.

Step 3 – Drafting of the Patent

Patent drafting is the process of creating a patent application using your invention disclosure and patentability search report. To prepare a solid patent application takes years of expertise and familiarity with patent law. Read through some of your domain’s awarded patents to get an idea. A patent is both a technical and a legal document. Writing a patent as a project report or a technical thesis and submitting it to the patent office on your own would be a mistake that would result in the loss of your patent potential. When drafting claims, writing thorough descriptions, writing multiple embodiments of the invention, detailing inventive steps, and so on, there are a lot of guidelines to follow and things to keep in mind. This is one of the most crucial stages in the patent life cycle. A good patent application written by an experienced patent agent/attorney should survive the examination phase until the patent is granted and the commercialization phase, where actual money is made by licensing or selling patent rights, and where competitors should not be able to work around your patent. The patent application must contain all the details mentioned under Section 10 of the Patents Act, 1970.

Step 4 – Filing of the Patent Application

Depending on the feasibility of the invention, you must decide whether to file a provisional patent application or a complete patent application. Suppose your vision is not comprehensive and requires further study and development, but you do not want to miss out on the priority date for submitting a patent application. In that case, a provisional patent application is advised. There are several benefits to filing a provisional patent application, such as Low upfront costs; submitting a provisional application is substantially less expensive than filing a complete patent application. The status “Patent Pending” can be written as follows: Although a provisional patent is not a patent, it will not be turned into a complete patent application unless you follow additional actions. Your innovation can legitimately be labeled “Patent Pending.” (prototype product) You have secured the priority date as its filing date by submitting a provisional patent. Therefore you do not need to be concerned about secrecy. Some mandatory forms need to be filled as per the patent filing procedure in India  such as –

Form 1 - Patent Grant Application

Form 2 - A specification form for a patent (provisional or complete)

Form 3 – Foreign application undertaking and declaration according to Section 8 (mandatory only in case a corresponding application for patent is filed in a foreign country)

Form 5 - Declaration of Invention, which must be submitted along with the full application.

Form 26 - Authorization of a patent agent (applicable only if you opt for an agent to help file the patent)

Form 28 — Only if the applicant is claiming small business or startup status is this form required.

Priority Papers — If priority is being claimed from a foreign patent claim or application, you must produce priority documents.

It’s time to give inventiveness a chance. But, filing a complete patent application at an early stage of the innovation might be a mistake. It may not effectively protect your idea, therefore filing a provisional application guarantees your priority date and allows you enough time to develop your product thoroughly. Patents are territorial, which means that if you register one in India, you will only be protected in India. Outside of India, you can’t prohibit the usage of inventions. As a result, if you want your innovation to be covered in various nations, depending on which countries you like, With the assistance of a patent agent/attorney, several alternatives, approaches, and tactics for submitting patent applications can be pursued.

Step 5 – Publication of the Patent Application

In most cases, the application is automatically published 18 months after filing. The inventor is not compelled to pay any fees or take any action. If one does not want to wait until the 18-month period has passed, you can submit an early publishing request together with the required costs. Early publishing requests can be submitted using Form 9 and paying the fees listed in the table below; in most cases, the patent application is published within a month of receiving the request for early publication. Section 11(A) of the Patents Act, 1970 deals with Publication of the Patent Application.

Step 6 - Request for an Investigation

The patent application is only reviewed once a request for examination is received. Within 48 months of the filing date or priority date, the inventor/applicant must file a request for inspection. This RFE is submitted using Form 18, and the government costs are listed in the table below. After receiving this request, the controller assigns your patent application to a patent examiner, who conducts searches to determine if the invention is patentable (as per patentability criteria). The examiner then produces the patent application’s first examination report (FER). Patent prosecution refers to everything that happens with a patent application before it is granted. Prior arts (materials that existed before the date of filing) that are comparable to the claimed invention and any objections expressed about the invention’s patentability criteria are often included in the initial examination report presented to the controller by the examiner. The (inventor) / patent applicant will receive the same examination report (along with objections). Section 11(B) of the Patents Act, 1970 deals with the request for an investigation.

Step 7 - Responses to the Objections

Based on the examination report, most patent applicants (inventors) will get some form of objection. The best thing to do is work with a patent agent/attorney to evaluate the examination report and solve the complaints highlighted in the report. This is an opportunity for an investor to express the invention’s uniqueness and non-obviousness based on the types of objections received. As an inventor/applicant, you have 12 months from the moment you get the First Examination Report to respond to the complaints presented. The inventor and patent agent draught and transmit a response to the objections, attempting to persuade the controller that his invention is patentable and meets all patentability requirements. It acknowledges the complaints and modifies the patent application following the First Examination Report. The response to the objections or the revised patent application satisfies the controller. Following the discovery of the patent application in the order of grant, the patent is awarded to you (inventor) / applicant as soon as possible with a patent office seal, and the date of appointment is recorded in the patent register.

Step 8 – Patent Grant

Once it is determined that the application meets all patentability conditions, it will be placed in line for award. The patent is given to the inventor/applicant as soon as feasible with the seal of the patent office. The recognition of the patent is announced in the patent journal, which is published regularly.Grant of patents is under Chapter VIII Sections 43 to 53 which contain all the aspects and term of the patent granted.  

Step 9 – Patent Renewal

The patent holder must pay an annual renewal fee to keep their patent valid. The patent can be renewed for a maximum of 20 years from the date it was initially filed. Even though the patent application procedure is lengthy and complicated, it is critical in the long run. The complete outline might take anything from 3 to 5 years. The Indian Patent Office, on the other hand, is employing new examiners and modernizing its offices to process patent applications more quickly. The procedure was designed to ensure that the innovator receives credit for his idea. It also assures that no one else may claim ownership of the innovation. The legal rights you have with your patent can prohibit rivals from profiting from your creation. You can even sue such people and demand damages for exploiting your idea without your permission.

 

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