Biswajit Sarkar Blog Patent Patent Registration in India

Patent Registration in India

In today’s technology-driven world, Intellectual Property has an indispensable role to play. Similarly, a patent is an important asset for an organization. An organization can grow in demand through its patenting activities. However, obtaining a grant of a patent is a long process with multiple checks on novelty, non-obviousness and industrial application of the invention.

A patent gives an exclusive right to the inventor to make, use and sell his invention. This exclusive right is given for a period of 20 years from the date of filing.  The main idea behind a patent is to protect the inventions that are created, thereby encouraging more developments.

Conceiving the Invention

The inventor should collect as much information as possible about his invention. The inventor should think about the field of his invention, the advantages of such an invention and if that invention can improve already existing solutions. However, not all inventions are patentable subject matter. Section 3 of the Patents Act, 1970 give those subject matter which are not patentable. Thus, the inventor must be aware of these subject matters that are not patentable while conceiving the invention.

Patent Search & Drafting

A patent search should be conducted by the inventor to understand whether the invention is novel or not. Under the Patents Act, all inventions must meet the novelty criteria. The patent search identifies the closest prior development known to the public in relation to the invention. Based on the results obtained, an opinion about the patentability of the invention may be given which can be negative, positive or neutral. The inventor can choose to directly file an application; however, a patent search is highly recommended.

Following the patent search, one should draft the patent application effectively. The application should include various parts such as claims, background, description, drawing, abstract and summary. These parts must be drafted carefully to provide an effective disclosure of the invention.

Filing the patent application

After the patent application is drafted the same can be filed in the patent office through application Form 1. A receipt is then generated with the patent application number. If the invention is at an early stage, one can file a provisional patent application. Filing a provisional patent application can help secure a prior date of filing which is important as it secures your invention from the very beginning. Moreover, one has 12 months to file the complete specification. If you have a startup or a small entity, then an application can be made through Form 28 to file for patents.

Publication of the application

After the complete specification is filed, the application is published after 18 months. If the applicant does not want to wait till 18 months to get publication, an early publication request can be made through Form 9 with the prescribed fees. In such a case, the patent application generally gets published within 1 month from the request of early publication.

Rule 24 and 24A of the Patent Rules, 2003

Rule 24 states that the application for patent will not be ordinarily open to the public within 18 months from the date of filing of such application or the date of priority. Given that the period within which the controller will publish the application will be ordinarily 1 month from the date of expiry of such period, or from the date of request for publication under rule 24A within 1 month. As per rule 24A, a request for publication should be made on Form 9 under section 11A (2).

Request for Examination

The applicant should request the patent office to examine the patent application as it is not an automatic process. A request for examination should be filed within 48 months from the date of filing the application through Form 18. The Controller, on such request, gives the examiner for examination on factors like novelty, non-obviousness, inventive step and industrial applicability of the patent. The applicant is then provided with the First Examination Report. Rule 24C of the Patents Rule, 2003 states that an applicant may also apply for an expedited examination through Form 18 with the prescribed fee.

Respond to the Objection

If any objection is received from the patent office in the First Examination Report, the applicant needs to file a written response to the objections raised. The applicant can negate the entire objection and prove the patentability of the invention through a written response. Further, a physical hearing may also be requested as the need may be.

Grant of patent

After all objections are addressed and all patent requirements met, the application is placed for a grant. The patent journal publishes the grant of a patent and any interested person may file a post-grant opposition within 12 months of such publication.

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