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How to file A Patent in India: Detailed Process

What is a Patent?

A patent is an exclusive right granted for an invention, which s a product or process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. A patent is a right granted to an inventor by the government of that country that permits the inventor to exclude others from making, selling, or using the invention for a while. The patent system is designed to encourage inventions that are unique and useful to society.[1]

Checking the Patentability of the invention by performing a search

  • Before filing a patent application in India, one should perform a detailed patentability search to determine a patent will be available or not. You can use the link to conduct the patentability and to draft an application form in form 1. [2]
  • A patent definition must be submitted for each submission. This must be done in form 2, where the full or provisional definition, depending on the state of the invention, must be given(whether its partially completed or completed). If a temporary application is filed, if a provisional application is filed, 12-months is allowed to finish the invention and submit the complete application.
  • Along with the submission, a patent draft would be expected to be submitted. The patent draft is a crucial paper since the patent office will use it to determine whether or not a patent can be issued.

Filing the Patent Application in India

An application for a patent for an invention may be made by any of the following persons either alone or jointly with any other person:

  • The True and first investor.
  • True and first inventor’s assignee.
  • The Legal representative of the deceased true and first inventor or his/her assignee

The term “person”as defined in the Patents Act includes Government. The term “person” as defined in the General Clauses Act, 1897 includes any company or association or body of individuals, whether incorporated or not. In the case of a limited partnership, the application may be in the names of all personally responsible partners. ipindiaservices.gov.in/public search, this step in itself is not mandatory.

Drafting of the Patent Application

The Indian Patent Office (IPO) is the main patent granting authority in India. Technically, a patent can be filed without a lawyer as long as you understand the specified the process-but having legal aid on your side is never a bad thing. This is because filing the patent requires technical expertise. A lawyer, or patent agent, would know the exact details that need to go into a patent application to prevent anyone from finding loopholes and making your patent –claim redundant.

Stages of the patent process

Following the completion and thoroughness of the search, the next steps are :

1. Application for grant of the patent through Form 1

2. Provisional/complete specification through Form 2

3. Statement and undertaking under Section 8(this is only required where a patent application is already filed in a country other than India) through Form 3

4. Declaration as to inventorship through Form 5

5. Forms submitted only by start-ups and small entities through Form 28

Publication of Patent Application

The official journal will print patent applications filed with the Indian Patent Office. This is usually done 18 months after the application is filed. If anyone needs it published sooner, they should fill out form 9 and another early release. When the Indian Patent Act places a limit on the publication of a patent, the patent may not be published.

The Patent Office Journal is published on every Friday with the following particulars [3]-

  • Application number
  • Date of filing
  • Title of invention
  • Publication date
  • International Patent Classification
  • Name and address of the application
  • Name of the inventor(s)
  • Priority details like priority document number, date, country, etc.
  • Reference to Patent of Addition/Divisional Application along with filing date of the patent application.
  • Abstract.
  • Number of claims
  • Drawings(if any)

Examining of Patent Application

Before a patent is issued, any claim for protection will be reviewed. Form 18 is used to apply for review. The sooner one submits a submission, the sooner the inspector will review the document. After the application is submitted, it is forwarded to the patent officer, who may review it to ensure that it complies with the patent act and laws. The officer conducts a detailed search in which he or she analyses the applicable technologies in detail and communicates any objections. The First Examination is the name of the report released in this situation (FER).

Grant of Patent

Once the application meets all the requirements of patentability, the patent is granted to the inventor with the seal from the patent office and is notified in the journal from time to time.

Opposition- Section 25 of the Act deals with the opposition to grant of patents and is of two types: Pre Grant (before the patent is granted) and Post Grant (after 1 year of grant of the patent). The opposition can be filed by anyone interested in the field of the invention in Form 7 with the prescribed fee within 12 months from the date of publication of the patent. [4]

Rules to keep in mind while filing the Patent Application

1. The First Schedule specifies the fees that must be paid in connection with the award of patents and application for patents, as well as other matters for which fees must be paid. [5]

2. When patent applications and other papers are physically filed, there is an extra charge of 10%.

3. Fees due under the Act o regulations can be charged in cash, electronically, or by bank draft or banker’s check at the proper office. The money is to be paid to the Controller of Patents and drawn to a designated bank in the location of the relevant office. If the draft or banker’s cheque is delivered via mail, the payments are considered billed on the day when the draft or banker’s cheque finally reaches the Controller.

4. When an invoice is due for a document, the whole fee must be accompanied by the document.

5. When an application is transferred from a natural citizen to someone who is not a natural person, the disparity in fees if any must be charged by the current claimant along with the order for transfer. In case an applicant by a small entity is fully or partly transferred to a person other than a natural person, the difference if any between the fees shall be paid by the new applicant with the transfer request.

References

[1] https://www.wipo.int/patents/en/

[2] http://ipindiaservices.gov.in/publicsearch

[3]https://ipindia.gov.in/writereaddata/Portal/News/505_1_Draft_MANUAL_OF_PATENT_OFFICE_PRACTICE_AND_PROCEDURE_01-03-2019.pdf

[4] https://blog.ipleaders.in/patent-law/

[5]https://ipindia.gov.in/writereaddata/Portal/News/505_1_Draft_MANUAL_OF_PATENT_OFFICE_PRACTICE_AND_PROCEDURE_01-03-2019.pdf

This article is authored by Kashish Tiwari, Student at Ajeenkya DY Patil University.

Please do comment your views below in the comment section. It would help us to improve our content. Also, let us know if you want us to cover blogs on any other topic.

The views and opinions expressed in this article are those of the author and do not reflect the views or opinions of Legally Flawless or its members.

Keywords: Patent| Invention |Application| India | Government.

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