In India, you can approach the Indian patent office for registering a patent. Online patent filing portal is the fastest way to register your patent in India. Patent registration involves various steps that need knowledge of patent law and technology. Thus, it is better to hire a qualified patent agent to help you get your patent registered in India.
Follow these steps to get a patent registered in India:
- Check if you should apply for a patent for your Invention
- Write a patent application.
- File the patent application in the Indian patent office.
- Publication of patent application by the Indian patent office.
- Examination of the patent application.
- Grant of patent.
Check if you should apply for a patent
There is a significant cost and time involved in getting a patent registered and granted. In India, only about 34% of all patent applications filed get granted. This is as per 2019 WIPO report on Patents. So, it is better to assess the feasibility of getting a patent granted before you apply for one.
Patent professionals can help do these three checks before applying for a patent.
- Is the invention part of non-patentable inventions in India?
- Does the invention already exists in the world?
- Can a simple combination of known inventions make your invention obvious?
The first check is to find out whether the invention is technical in nature. And it is not part of non-patentable inventions in India.
The second check is to learn if the invention is already known in the world. Patent professionals use various patent databases, publications, technical journals etc, for this purpose. If the invention already exists then you cannot patent it again. These searches are also called "Novelty Searches".
The third check is also called a "patentability search". Sometimes an invention is a simple combination of two or more inventions. If we can predict the outcome of such combination, then the invention is obvious. But if such combination has a surprising or unknown result, then it is possible to get a patent.
"Patentability searches" are complex, and are rarely a 100% accurate. In spite of clearing these checks nobody can guarantee you will get a patent registered in India. The Indian Patent Office takes that decision based on examination of the patent application.
Are all checks done? Is the probability of registering a patent high? Then the next step is writing or drafting a patent application.
Writing the patent application
Writing a patent application is also known as drafting the patent application. Patent applications are legal documents. You should hire a patent practitioner who has good knowledge of the Indian patent law.
Claims are the most important part of a patent. This is the section of the patent application that gives you the rights. Claims draw up the boundary of what belongs to you. Ensure this section gets the most time and attention.
A patent application has many other sections. These sections explain the invention in detail. Sometimes the application contains diagrams, and/ or results of experiments. These sections taken together should allow another person to understand the invention. Indian patent office issues guidelines on drafting sections of the patent application. . After drafting the patent application, you have to file that in the Indian Patent Office.
Filing the patent application in the Indian patent office
The fastest way to file a patent application in India is via the online application portal. A patent agent can help you with this process. Some documents that need to filed for registering a patent in India are :
Application for patent grant
Form 1 is the new patent application form. This is for Filing and examination of a Patent application. It is mandatory for the new application.
File drafted patent application
Form 2 is used for filing the drafted patent application. The drafted patent application is also mandatory for the new application.
Undertaking for first filing in India
In Form 3 the inventor declares all countries where the invention is filed. If first filing is being done in India, same is stated in the form.
Declaration of invention
You have to provide a declaration of invention in the Form 5. This is to claim that you are the true and first inventor.
Authorising a patent agent to file on behalf of the inventor
Form 26 is mandatory when hiring a patent professional or patent agent for filing. This form authorises a patent agent to file the patent application for on behalf of the inventor.
Get a discount on patent filing fees
Small entities and start-ups get a discount in filing fees. Use Form 28 to declare entity status. Also provide supporting documents mentioned in the form.
Submission of the patent application along with the forms completes the patent filing. Now the patent office takes up the application for examination. It does take time to get to the examination stage. Number of applications in the queue determines this.
Publication of patent application
The invention remains hidden through the process of drafting and application. Eighteen months after application is the filed the patent office publishes the application. This is the first time the invention becomes available to the public.
Sometimes it is necessary to get an application published earlier than 18 months. In such cases there is a provision for early publication in Indian Patent Law.
In India, your competitors may oppose the patent before its grant. Pre-grant opposition is part of the Indian patent law.
Examining of patent application
In India, patent examination is not an automatic process. The inventor must file a request for examination. Request for examination (Form 18) must happen within 4 years of application filing. Start-ups can also speed up the examination through Form 18A.
Patent examination is when the fate of the application gets decided. The Indian patent office verifies the claim and descriptions mentioned in the application. And based on this examination the patent office may raise objections.
Majority of the patent applications receive some type of objections. These objections are part of the first examination report (FER). Inventors may respond to the objections raised in the FER within 9 months. Responses may lead to further objections, and further responses. This back and forth continues till grant of the patent or rejection of the application.
Grant of patent application
Patent is in the Indian patent registry after its granted. Indian Patents rights are for a period of 20 years from the date of first filing of the application.
The inventors’ responsibilities do not end with the grant of a patent. The inventor has the following responsibilities:
- Respond to post-grant opposition
- Pay maintenance fees every year
- Provide statement of working of the patent in India
Registering a patent in India is a systematic process. It is well established. And patent professionals are available to help inventors.
This article is part of the series IPR Toolkit for Startups in India. The series covers various types of Intellectual Property Rights that startups can get in India. Access all the articles in the series