IPRs are crucial all over the world today as they protect human intellect and creativity-the base for economic prosperity, progress, and innovation. They further facilitate international trade, safeguard consumers from spurious or pirated goods, spur economic development, and foster innovation and creativity. Safeguarding intellectual property allows innovators and creators to reap their investment and efforts.
Patents of product inventions are among the most popular forms of intellectual property rights. A patent is in fact a privilege to an invention; the invention being a physical construct or plan that resolves a particular difficulty or offers a new way of accomplishing something. A patent offers a legal instrument through which an invention cannot be produced, sold, supplied, imported or offered for sale within the territory of a particular country without obtaining a license from the proprietor of the Patent[1].
The Indian Patent Act of 1970[2] and its companion regulations prescribe the process for filing an application for a patent in India. The primary purpose for seeking protection of an invention in the form of patents is to grant inventors a monopoly over the inventions. In the area of dynamism in intellectual property law, patent rights hold a significant interest of innovators and companies who wish to safeguard new inventions [3].
This article provides a comprehensive overview of the filing of patents in India, including the lengthy and complicated procedures involved and the form of application available to the applicants.
Patent Registration Process in India
Even for patents in India, any invention needs to fulfil the requirements of patentability under the provisions of The Patents Act. This includes industrial applicability, originality of the subject matter of the invention, creative step or non-observability of the invention.
On the other hand, certain inventions also cannot be patented, as outlined in Section 32 of The Patents Act[4].
So, to establish the novelty of the concept, the search first begins for the same. This can be done by checking the published applications and existing patents in the database of the Indian Patent Office. The area of innovation determines whether to extend the search to international databases such as WIPO or USPTO.
Preparing the patent request
Preparing the patent application requirements comprising all specifications and claims is a must before applying India’s patent acquisition criteria.
Each Indian applicant is required to fill out and submit Form 1 of the Indian Patent Application and provide Form 2 patent specifications for each application. When filing their innovation, they are allowed to fill a non-full or even a full patent application depending on the advancement stage of the innovation. Recommended that the innovational idea should be filed under a provisional patent application when it is still under test.
This will give a one-year window to fine-tune the idea/innovation to a complete package and file a full patent. Every Indian patent application must also comprise a complete specification as well as details of the novelty and sketch or plan that would be relevant. While evaluating an idea or a solution you should explain how the idea functions, and, more specifically, what differences it brings to all prior solutions. A patent agency, patent attorney, or any patent agency should be sought to prepare the patent application so it will have all the components mentioned.
Instituting the patent process in India
In addition to the filing fee, the Indian Patent Office must also receive a completed patent application. As such, it is possible to file your application online or in person. The patent office will issue a receipt acknowledging the receipt of the application. There are many application forms that need to be filed along with the patent application.
- Form 1: Patent Application Submission
- Form 2: Application Type Specifications: Provisional or Complete.
- Form 3: Section 83[5], declaration and statement of foreign application should be presented in case of submission of an identical application in another country.
- Form 5: Official declarations of the innovation, including all its features and methods of operation.
- Form 26: The applicant must submit a form of authorization from the agent if he has chosen such an agent for filing the patent.
Getting the Patent Application Published
Upon filing an application for a particular patent with the registry for patents in India, the respective patent application is published in the official Journal of patents. In general, this occurs 18 months from the date of filing the application. The applicant may request early publication by submission of an application to publish as a preliminary in conformity with Form 9.
The publication may be restrictive in some aspects, for instance when the application is deemed insubstantial and the applicant asks for withdrawal of the application, or under the Patents Act, an order of secrecy may be made. The publication through the Gazette allows the public to view the application and allow them to lodge objections or opposition.
Evaluating the Patent Application
Before any patent is issued, every patent application is thoroughly examined. Application for the examination requires a Form 18 from the applicant. The application is forwarded to the patent officer after it has been submitted and he analyses it against the patent rules and regulations of India in which the invention has to be there.
The officer assembles a list of all objections in the First Examination Report (FER) with regard to relevant inventions that he or she analyses. If objections arise, the petitioner has to revise the application. A request for an extension can be made using Form 4.
Granting of Patent
Patents are issued after the Patent Office reviews the application to ensure that it meets all objections raised; patents are issued after the objections have been met where necessary. Patent issued is then publicized in the Patent Office journal or the Patent Gazette as the case may be. A patent so obtained confers on an inventor a proprietary interest in the use, manufacture, sale, or import of an invention in India for a period of two decades from the date of filing of a patent application.
Patent renewal
The renewing of the patent incurs a yearly cost upon the patent holder. A maximum of twenty years after filing the patent application can allow the renewal of the patent by the holder.
Conclusion
Globalization and the rampant development of technology have strongly enhanced the spread of innovative innovations that directly or indirectly improve human conditions. Application for patents is an important step in protecting inventions[6]. It allows innovators to be protected over inventions and, through that, reap economic benefits from utilization.
The process of obtaining an Indian patent guarantees that the invention is novel, non-inescapable, and utility to industry. It urges inventors to spend in R&I so that it evokes development in technology and prosperity in economic activities.
The patenting process in India involves and possesses the basic legal compliance of the Indian Patent Act. This aspect is very crucial as the rules governing the process as well as the many purposes for which applications may be filed to avail patent protection in India need to be fully understood.
[1] Intellectual Property Office, Patent Office Procedures (2021), available at https://ipindia.gov.in/writereaddata/images/pdf/oatent-office-procedures.pdf.
[2] The Patents Act, 1970, No. 39 of 1970 (India) (enacted Sept. 19, 1970).
[3] Procedure for Filling of Patent Application and Type of Application in India, Legal Service India, available at https://www.legalserviceindia.com/legal/article-14436-procedure-for-filling-of-patent-application-and-type-of-application-in-india.html
[4] The Patents Act, 1970, No. 39 of 1970 (India) § 32 (enacted Sept. 19, 1970).
[5] The Patents Act, 1970, No. 39 of 1970 (India) § 83 (enacted Sept. 19, 1970).
[6] Patent Registration Process in India: A Comprehensive Guide to Filing and Prosecuting Patent Applications, Mondaq, available at https://www.mondaq.com/india/patent/1294582/patent-registration-process-in-india-a-comprehensive-guide-to-filing-and-prosecuting-patent-applications.
Author: Ansh Priy Srivastava is a 2nd-Year Law Student at Chanakya National Law University.
