How to get a patent in India?

Introduction

Patent’s in India is governed by the Patent’s Act 1970.

The patent is defined under Section – 2(m) as “A patent for any invention granted under this act. Patent gives exclusive rights to the inventor of any invention and bars others from making, using , selling etc without authorization or license. Patent is a statutory right granted and regulated by the respective governments. What are inventions is given in Section-2(j) of the Patents Act 1970.

Criteria of Patentability         

 For an invention to be patentable , following criteria must be met:

1. The invention must be novel : The invention must not have been published or used anywhere in the world at the time of filing for patent. It must be new
2. The invention must be capable of being used for industrial application

i.e it must be made or be capable for usage in industry.

3. The invention must involve an inventive step: it should have technical advancement compared to existing inventions.
4. The invention should not fall under the category of inventions that are excluded from patentability as given in Section – 3 of this act ( What are not inventions) and Section- 4.

Process of filing for patent

•  Patent Search: Patent Search is done to check whether there are any similar inventions already patented or available in the public domain. This is done to ensure that the product seeking patent registration is absolutely novel and undisclosed to the public. 
• Filing of patent application at the patent office: An  application of patent can be filed either physically at the patent registry office or it could be filed electronically online. 

Form 1( with the primary details of the inventor) or 

Form 28( in case of launch- ups and small realities); 

Form 2( with the provision or complete specifications); 

Form 3( in case the operation is an transnational operation); 

Form 5( declaring all the formulators of the invention) and

 Form 26( power of attorney, if the operation is being filed by an attorney), have to be filed together on the portal or posted to the registry along with the payment of the applicable figure for patent enrollment .

Most importantly, in the event, a complete specification is filed within 12 months of filing the patent application, the inventor shall secure a previous date of form on the application that was originally filed( with the provisional specification).

•  Publication of the application: The application of patent is generally published after 18 months from the date of filing of Application. Considering the long extent of time , if the application does not want to wait for 18 months for publication, the applicant can file through Form 9 requesting for an early publication by paying the prescribed fee. Now the Controller General will be required to publish the application within 1  month of filing the request of early publication. Furthermore, from the date of publication to the date of grant of patent, an application is afforded the same privileges and rights as if a patent for the invention had been granted (from the date of publication of application).
•   Request for examination

Now the applicant has to file a request for examination of the application within 48 months from the date of filing of the application since this process is not an automatic one. One can opt for early examination by filing through form 18A . The Controller General will be now refer the request application to an examiner, who will formulate the first examination report within 1 month

• Pre-Grant Objection to the application

The applicant needs to respond to the objection received from the patent office by way of the First Examination Report .If there is any objection filed at the patent office regarding the grant of patent on the invention. The applicant is expected to file a written response to the objection raised in the examination report. The applicant can prove the patentability of the invention and try negating the entire objection being raised. Physical hearing or video conferencing can also be requested, as the case may be.

•   Grant of Patent

      When all the objections are  cleared, in  then the  examiner and the Controller comes to the conclusion that the application and the ancillary documents provided are statutorily compliant with all the regulations and the necessities , an order for grant of patent is notified to the applicant (or the agent) and subsequently published in the patents journal.

•   Post-Grant Objection to the application(Section 25(2) of the Patents Act 1970)

            In case there are any opposition to the grant of patent, any person is permitted to file a notice of opposition addressed to the Controller General, within 1  year from date of publication from grant of patent.

Benefits of Patent Filing Procedure in India?

Patent registration provides many benefits and advantages to the rightful owner of the invented product. These benefits  include  legal protection , the inventor or applicant receives against unauthorized use,  exclusive monopoly in trade of the rightful owner, and other financial profits through licensing or selling of the patent.  

1. Legal Protection: Filing a patent in India grants exclusive rights to the inventor along with the right to sue an infringement action in any court of law. This prevents third parties from misusing the product, and  also helps enforce the intellectual property rights of the owner.
2. Market Advantage: A patent-registered product has a market advantage over non-patented products. Patented products give more credibility and originality and the customers want the same and so it’s market value and demand increases compared to unpatented inventions . Also, the patent owner has exclusive rights to trade and manufacture it. This allows the owner to single-handedly capitalize over it for a long period.
3. Financial Opportunities: On getting the patent of a product, it can be sold or licensed to a third party to generate additional revenue. Selling the patent will relinquish the ownership rights of the inventor. On the contrary, licensing it will retain the same. You can analyze the profitability of both these options and avail the one that best suits you.
4. Research and Development Incentives:  Filing patent application encourages and rewards innovation by providing inventors with a monopoly over their products for 20 years. This incentivizes inventors and businesses to invest in research and development (R&D) activities, knowing that they will have exclusive patent rights and potential financial benefits from their inventions in the long run.