In India, according to the Patent Act of 1970, an application for a patent can be filed by the true inventor for the protection of the invention, or an assignee or a legal representative. The person, who first applies for a patent, is entitled to obtain the patent. Unfortunately, an inventor of the invention who applies subsequently will not obtain the patent as against the first applicant. Any Indian citizen or an organization can apply for the Registration of Patent in India. A foreign national can also file application for Registration of Patent in India provided he has an address for service in India.
For Registration of a Patent in India, the specified form duly completed along with the requisite government fees have to be submitted before the Patent Office, Government of India. The jurisdiction of the filing the application for patent registration would be decided on the basis of the applicant’s address. In case the applicant for the patent registration in India does not have any place of business in India or domicile of India, the jurisdiction of the filing in the Patent Office would be determined according to the address for service in India given by the applicant or the Patent Attorney who is empowered to file the Patent Application on behalf of the applicant.
The Head Office of Patents in India is located at Kolkata, West Bengal.
The application for patent should be flied either with a provisional specification or complete specification. The Applicant can file the application for Patent registration along with the provisional specification where the description of the invention is briefly mentioned without any claims. In this case the inventor may have privilege for more developments within the scope of the respective invention. The complete specification must be filed with all the claims for protection of patent within 12 months from the date of filing the provisional specification. In the event of failure of submission the application for Patent registration will be deemed as abandoned.
The complete specification should fully express the prior art, the details of the invention along with drawings, if any. The most important and critical area of the Patent Specification are the claims which should be carefully drafted for proper protection of the invention. It is advisable to prepare and file the complete specification through a Patent Attorney who is well equipped with specific knowledge. The claim or claims should define the scope of the invention for which the protection is claimed. The claim should cover only one single invention. The claims should be drafted neither in a broad way nor in a narrow way. The specification should be accompanied by drawings where necessary and the abstract of the invention.
The application for patent is examined by examiners of patents to see whether it complies with the requirements of the Act and the Rules, whether there is any lawful ground of objection for the grant of patent, and whether the invention has already been published or claimed by any other person. The examiner makes a search in publications available in the Patent Office and specification of prior applications and Patents to see whether the same invention has already been published or claimed or is the subject matter of existing or expired patents.
After a period of time every Patent Application is being examined by Learned Examiner appointed by The Patent Office, Government of India and the examination report will be sent to the Patent Attorney of the Applicant to overcome the objections raised by the Learned Examiner of the Patent Office, Government of India. Most of the time, the objections are related to the drafting of the specifications and claims, under the definition of the invention in the Indian Patents Act, 1970. These objections can be overcome by suitable amendments of the description of the invention and/or the claims. These objections should be dealt through an Indian Patent Attorney to safeguard the interest of the inventor. If the objections are not waived through amendments, the Controller of Indian Patent Office shall fix a hearing for further submission before refusing or granting the applicant for patent registration in India.
In case of overcoming the all objections raised by learned Examiner of Indian Patent Office, the Controller of the Indian Patent Office will accept the complete specification and advertise it in the Official Gazette published by the Indian Patent Office. From the date of acceptance of the Indian Patent Application till the date of sealing of the Indian Patent , the applicant will have the benefits of the protection of Patent but will not have any right to initiate any proceeding against infringement until the patents is sealed.
Any person interested can file notice of opposition against the respective patent within three months from the date of advertisement in the Official Gazette published by Indian Patent Office. The Controller will forward a copy of the notice of opposition to the applicant who may subsequently file the relevant evidence in support of the Patent Application. Finally, the opposition proceedings of the application for Patent registration shall conclude through hearing and would be decided in favour of Applicant or the Opponent and the Application for patent registration will be rejected or accepted by the Learned Controller of Indian Patent Office.
While the application of registration of patent in India is accepted without any opposition, a Patent in India will be granted, if the request for sealing the patent is made by the applicant before the Indian Patent Office.
The term for Patent in India is valid for 20 years and the granted patent remains active in the register maintained by the Indian Patent Office only by paying the renewal fees from time to time.