Patent Registration

Patent FAQs (India)

What is a Patent?

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.

What is the term of a patent in the Indian system?

The term of every patent granted is 20 years from the date of filing of application. However, for application filed under national phase under Patent Cooperation Treaty(PCT), the term of patent will be 20 years from the international filing date accorded under PCT.

Which Act governs the patent system in India?

The patent system in India is governed by the Patents Act, 1970 (No.39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent Rules are regularly amended in consonance with the changing environment, most recent being in 2016.

Does Indian Patent give protection worldwide?

No. Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of global patent. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries or under PCT, within or before expiry of twelve months from the filing date in India. Patents should be obtained in each country where the applicant requires protection of his invention.

What can be patented?

An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act

What is the criteria of patentability?

An invention is patentable subject matter if it meets the following criteria –

i) It should be novel.

ii) It should have inventive step or it must be non-obvious

ii) It should be capable of Industrial application.

iv) It should not attract the provisions of section 3 and 4 of the Patents Act 1970.

What types of inventions are not patentable in India?

An invention may satisfy the condition of novelty, inventiveness and usefulness but it may not qualify for a patent under the following situations:

i. an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

ii. an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human , animal or plant life or health or to the environment;

iii. the mere discovery of scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;

iv. the mere discovery of a new form of a known substance which does not result in enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;

Explanation: For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regards to efficacy.

v. a substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

vi. the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

viii. a method of agriculture or horticulture;

ix. any process for medicinal, surgical, curative, prophylactic (diagnostic, therapeutic) or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;

x. plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

xi. a mathematical or business method or a computer program per se or algorithms;

xii. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

xiii. a mere scheme or rule or method of performing mental act or method of playing game;

xiv. a presentation of information; xv. topography of integrated circuits;

xvi. an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components;

xvii. inventions relating to atomic energy;

When should an application for a patent be filed?

An application for a patent can be filed at the earliest possible date and should not be delayed. An application filed with provisional specification, disclosing the essence of the nature of the invention helps to register the priority of the invention. Delay in filing an application may entail some risks such as

(i) some other inventor might file a patent application on the said invention and

(ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her

Can any invention be patented after publication or display in the public exhibition?

Generally, an invention which has been either published or publicly displayed cannot be patented as such publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organised by the Government or disclosure before any learned society or published by applicant. The detailed conditions are provided under Chapter VI of the Act (Section 29-34).

(i) some other inventor might file a patent application on the said invention and

(ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her

Who can apply for a patent?

A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.

How can I apply for a patent?

A patent application can be filed with Indian Patent Office either with provisional specification or with complete specification along with fee as prescribed in schedule I. In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the provisional application. There is no further extension of time to file complete specification after expiry of said period.

What are the types of applications?

The types of applications that can be filed are:

A) PROVISIONAL APPLICATION Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a ―priority‖ date of the invention. Further, the inventor gets 12 months‘ time to fully develop the invention and ascertain its market potential and to file the complete specification.

B) ORDINARY APPLICATION:

An application for patent filed in the Patent Office without claiming any priority either in a convention country or without any reference to any other earlier application under process in the office. Such type of application is known an ordinary application.

C) CONVENTION APPLICATION An application for patent filed in the Patent Office, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries is known as a convention application. In order to get convention status, an applicant should file the application in the Indian Patent Office within 12 months from the date of first filing of a similar application in the convention country.

D) PCT INTERNATIONAL APPLICATION An Application filed in India as Receiving Office (RO) under Patent Cooperation Treaty is an international application which can be filed in more than 150 countries by a single application.

E) PCT NATIONAL PHASE APPLICATION When an international application is made according to PCT designating India, an applicant can file the national phase application in India within 31 months from the international filing date or the priority date, whichever is earlier.

F) PATENT OF ADDITION When an invention is a slight modification of the earlier invention for which he has already applied for or has obtained patent, the applicant can go for patent of addition if the modification in the invention is new. One of the benefits of filing patent of addition is that there no need to pay separate renewal fee for the patent of addition during the term of the main patent and it expires along with the main patent.

G) DIVISIONAL APPLICATION When an application claims more than one invention, the applicant on his own or to meet the official objection on the ground of plurality or distinct invention may divide the application and file two or more applications, as the case may be for each of the inventions. This type of application, divided out of the parent one, is known a Divisional Application. The priority date for all the divisional applications will be same as that of the main (the Parent) Application (Ante-dating)

Call Now Button