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Are you an inventor or business owner with a groundbreaking invention but unsure how to protect it from being replicated? Well, you’re in the right place. This article is going to provide you with a simplified, step-by-step guide to patent filing in India. It is a legal process that can help secure your invention from being used or sold by others without your permission.
What is a Patent?
A patent is a type of intellectual property right that grants the patent holder exclusive rights to their invention for a certain period, usually 20 years. In simpler terms, it’s a bit like having a protective shield around your invention to keep others from copying it.
For instance, let’s say you’ve invented a new kind of solar-powered drone that can deliver packages faster than conventional methods. By patenting this invention, you ensure that no other individual or company can produce or sell a drone with the same design or functionality without your consent.
Eligibility for Patent Filing in India
Not every idea or innovation can be patented. In India, the patent law outlines specific patent eligibility criteria that your invention must meet to qualify for a patent. Here’s what can and cannot be patented.
a. What Can Be Patented in India?
In general, any invention that is new, involves an inventive step, and is capable of industrial application can be patented. It means your invention must be something new, not obvious to someone skilled in that area, and can be made or used in some kind of industry.
Returning to our solar-powered drone example, suppose your drone incorporates a new type of solar panel technology that significantly increases energy efficiency. This could be seen as a new and inventive step, thereby making it eligible for patenting.
b. What Kind of Inventions Cannot Be Patented?
However, not all inventions are eligible. The Indian patent law excludes certain categories, including scientific theories, mathematical methods, business methods, or any aesthetic creation such as a painting or a sculpture. It also excludes any method of agriculture or horticulture, as well as any medical treatment procedure.
For example, if you’ve developed a more effective way of teaching calculus (a mathematical method) or a new business strategy for startups (a business method), these would not be eligible for a patent in India.
| Criteria | Examples |
|---|---|
| What Can Be Patented? | An invention that is new, involves an inventive step, and is capable of industrial application |
| What Cannot Be Patented? | Scientific theories, mathematical methods, business methods, aesthetic creations, methods of agriculture or horticulture, medical treatment procedures |
Benefits of patent filing in India
Securing a patent for your invention brings a host of advantages. Here are a few key ones:
1. Exclusive Rights
A patent gives the patent holder the exclusive right to prevent others from making, using, selling, offering for sale, or importing the patented invention in India. This exclusivity typically lasts for 20 years from the date of filing the patent application.
2. Commercial Advantage
Patents can provide a significant commercial advantage, especially in competitive sectors. They allow businesses to maintain a monopoly over their invention, enabling them to set their own prices and potentially gain substantial profits.
3. Licensing and Royalties
Patent holders can license their patents to others, which can be a significant source of revenue. Through licensing, inventors can allow others to use their patents in return for royalty payments.
4. Protection against Infringement
A patent provides a legal basis to sue others who may infringe upon the patent holder’s rights by copying or selling the invention without permission.
5. Encourages Investment
Patents can also make businesses more attractive to investors. Patents indicate a level of expertise and show that a business has valuable exclusive rights to a product or process.
6. Boosts Reputation
For individuals and businesses alike, holding a patent can enhance reputation and market perception. It signifies innovation and might open up new opportunities for collaboration, partnership, or funding.
7. Right to Sell or Transfer
Patent rights are transferable. A patent holder can sell the rights to the patent, or transfer it, just like any other property right.
| Benefit | Explanation |
|---|---|
| Exclusive Rights | Prevent others from making, using, selling, or importing the patented invention |
| Commercial Advantage | Maintain monopoly, set own prices, gain substantial profits |
| Licensing and Royalties | Allow others to use patents in return for royalty payments |
| Protection Against Infringement | Legal basis to sue others who infringe upon the patent |
| Encourages Investment | Attracts investors with valuable exclusive rights |
| Boosts Reputation | Enhances reputation and market perception |
| Right to Sell or Transfer | Sell the rights to the patent or transfer it |
What are the steps to file a patent application in India?
Now let’s dive into the heart of the matter – how to file a patent in India. As the next part of this guide, we’re going to take a closer look at what patent filing means and provide a step-by-step walkthrough of how you can go about filing a patent for your invention in India.
What is Patent Filing?
Patent filing is the process where you submit a patent application to the patent office. This application presents a detailed overview of your invention and officially asks for a patent to be granted. Consider it akin to narrating a story. Like every good story, your patent application must describe the ‘who‘, ‘what‘, ‘why‘, and ‘how‘ of your invention, similar to introducing characters, setting, and plot in a narrative. By providing a complete and compelling ‘story’ about your invention, you make a strong case for its patentability.
A patent application usually includes a detailed description of the invention, any drawings or diagrams necessary for understanding the invention, and a set of claims defining the scope of protection sought.
Now, let’s break down the steps involved in filing a patent application in India. It might sound daunting, but don’t worry, we’re here to simplify it.
Step 1: Document Your Invention
Start by writing down every detail of your invention. The more comprehensive, the better. This should include how you’ve made it, the problem it solves, how it differs from existing solutions, and its potential uses.
Step 2: Conduct a Patentability Search (Optional)
Before you file a patent application, it’s a good idea to check if your invention is truly new. You can do this by conducting a patentability search, which involves searching through existing patents and public disclosures to see if your invention or something similar to it has been patented before. There are online databases like the Indian Patent Office’s database, or international ones like the WIPO, Google patents where you can do this search.
Step 3: Draft the Patent Application
This is the critical stage where you prepare the actual patent application. It includes the title of the invention, a brief abstract, a detailed description of the invention with drawings (if necessary), and the patent claims (optional for provisional patent filing in India) which define the scope of the invention’s protection.
This is an important and time consuming step. If you are engaging a patent professional, a significant professional fee is also involved, like ₹6,000 to ₹30,000 for drafting and filing a provisional patent application.
Step 4: File the Patent Application
Once the application is ready, you can file it with the Indian Patent Office. Once filed, you will receive the patent application number.
There are four Patent Offices in India, located in Delhi, Mumbai, Chennai, and Kolkata. The application can be submitted either online or offline along with the prescribed fee with the appropriate patent office.
Once the patent application is filed, it will undergo the next stages in the patent process like publication, examination, etc. Please refer to the Indian patent procedure article for more details.
| Step | Description |
|---|---|
| Document Your Invention | Write down every detail of your invention |
| Conduct a Patentability Search (Optional) | Check if your invention is truly new |
| Draft the Patent Application | Prepare the actual patent application |
| File the Patent Application | File the application with the Indian Patent Office |
Cost and Timeframe for Initial Patent Filing in India
When you’re eager to protect your innovation, it’s essential to understand the cost and timeframe associated with the initial patent filing process in India.
How much money is required to file a patent in India?
The cost associated with filing a patent in India includes the government fees which vary depending on the type of applicant – individual, start-up, small entity, educational institute, or large entity. The official fees range from INR 1,600 to INR 8,000 based on the applicant type. Additionally, there is a government fee of ₹160 per extra sheet over 30 sheets for a natural person or startup, and ₹800 for any other entity.
However, if you choose to hire a patent agent or attorney for professional assistance with the patent filing, their fees would be an additional cost and can sometimes be as high as 95% of the total patent costs in India. This can fluctuate based on their level of experience and the complexity of your patent. The cost of a patent agent to write and file a provisional patent filing in India can range from ₹6,000 to ₹30,000.
Timeframe for Filing a Patent in India
The timeframe for the initial patent filing is typically a few days (2-20 days), once you have all the necessary details of your invention. Drafting of the patent application is a time-consuming part and will take the majority of the time during this process.
After the filing of the application, it gets recorded in the patent office and a patent application number is allotted. It’s important to note that this initial filing secures your priority date – the date from which your patent protection starts.
It’s crucial to understand that these costs and the timeframe only cover the initial filing of your patent. There are additional steps, costs, and timelines involved after the patent has been filed, including examination request, responding to potential objections, and the ultimate grant of the patent. These subsequent stages from a process and cost point of view are discussed in detail in the patent process article and the patent cost article respectively.
| Cost/Timeframe | Description |
|---|---|
| Government fees | Varies based on the type of applicant, ranges from INR 1,600 to INR 8,000 |
| Patent Agent’s fees | Additional cost if professional assistance is sought, can range from ₹6,000 to ₹30,000 |
| Timeframe | A few days (2-20 days) once all the necessary details of the invention are ready |
Documents and Locations for Patent Filing
A comprehensive patent application necessitates several documents, including a patent specification, abstract, drawings (if necessary), and proof of the right to file for a patent. The applicant needs to submit the following documents and forms. These include:
- Form 1 (Application for Patent Grant),
- Form 2 (Patent Specification Form, either provisional or complete),
- Form 3 (Undertaking and Statement with regards to Foreign Applications under Section 8, applicable only in case a corresponding application for patent is filed in a foreign country),
- Form 5 (Declaration of Invention to be filed with complete application),
- Form 26 (Form authorizing Patent Agent, applicable only if you opt for an agent to help file the patent) and
- Form 28 (Mandatory only if applicant is claiming small entity or start-up status).
- In case priority is claimed from a foreign patent claim or application, you need to provide priority documents.
In India, the patent can be filed at any branch of the Indian Patent Office, based in Kolkata, Mumbai, Delhi, or Chennai, or filed online. To determine the correct patent office, please refer to the Indian patent office’s jurisdiction table below:
| Office | Territorial Jurisdiction |
| Patent Office Branch, Mumbai | The States of Maharashtra, Gujarat, Madhya Pradesh, Goa and Chhattisgarh and the Union Territories of Daman and Diu & Dadra and Nagar Haveli |
| Patent Office Branch, Chennai | The States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, Telangana and the Union Territories of Pondicherry and Lakshadweep |
| Patent Office Branch, New Delhi | The States of Haryana, Himachal Pradesh, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand, Delhi and the Union Territory of Chandigarh, Jammu and Kashmir and Ladakh |
| Patent Office, Kolkata | The rest of India |
Best Practices in Patent Filing
Careful planning is crucial in patent filing. A thorough patentability search, comprehensive patent draft with clear claims, can enhance your chance of a successful patent journey during the examination stage.
Conclusion
Patent filing is a complex but rewarding process, providing robust protection for your innovative ideas. While it involves significant time, cost, and strategic planning, the benefits of securing your invention with a patent grant make this journey worthwhile. An understanding of the processes, along with professional guidance, can greatly assist in navigating the patent landscape.
FAQ’s
Q. When should you file a patent in India?
You should file a patent as soon as possible after you have conceived and sufficiently developed your invention. This is critical for two reasons:
- First-to-File System: India follows a first-to-file system, which means that the patent rights are awarded to the first person who files a patent application. Even if you were the first to invent, you might lose the right to patent your invention if someone else files a patent application before you.
- Preventing Public Disclosure: Publicly disclosing your invention before filing a patent application can make it ineligible for a patent. In India, however, there is a grace period of 12 months from the date of public disclosure to file a patent application, but it’s safer to file the patent application first.
Please note, it’s also essential to file the patent application before commercializing your invention or seeking funding, to ensure that your intellectual property rights are protected.
Q. How to file a patent in India?
To file a patent in India, document your invention in detail, ensuring it’s unique and useful. You may optionally perform a patentability search for similar patents. Draft a patent application, comprising of title, abstract, and a detailed description, and file it with the Indian Patent Office. Fees range from ₹1,600 to ₹8,000 based on the type of applicant. Upon successful filing, an application number is assigned. Note, this is only the initial filing stage, and more steps are needed for final patent approval.
Q. What happens after filing a patent in India?
After filing a patent in India, the following key steps occur:
- Publication: Your patent application is published in the Patent Office Journal, generally 18 months after the filing or priority date.
- Examination Request: An examination of the patent application is performed only after you submit a request within 48 months from the filing or priority date, whichever is earlier.
- First Examination Report: The patent office reviews the application and issues a First Examination Report (FER) outlining any objections.
- Response to Objections: You must address or comply with the objections within 6 months from the date of the FER. An additional 3 month extension is possible.
- Grant of Patent: If all objections are resolved, the patent is granted and the details are published in the Patent Office Journal.
- Renewal: After the patent is granted, an annual renewal fee is required from the third year onwards to maintain the patent.
Q. How long does it take to get a patent grant in India?
Getting a patent grant in India is a time consuming process. It typically takes anywhere between 3-5 years during a standard process. For a fast track examination process the timeline reduces to around 8-18 months.