By - King Stubb & Kasiva on March 8, 2023
Intellectual property rights (IPRs) are essential in the contemporary world because they safeguard human creativity and intellect, which are the basis for innovation, advancement, and economic prosperity. They support innovation and creativity, foster economic progress, safeguard consumers from counterfeit or pirated goods, and promote international trade. By safeguarding their intellectual property, innovators and creators can profit from their endeavors and investments.
One of the most common types of IPR is a Patent. It is an exclusive right awarded for an innovation, which is a product or method that gives a new technical solution to a problem or a new way of doing something. Patent protection means that the patented invention cannot be manufactured, used, distributed, imported, or sold commercially without the permission of the patent owner.
A patent is only a territorial right and is also a negative right.[1] It protects intellectual property, i.e., the invention, for 20 years, after which it goes to the public domain. For an invention to be patented in India, it needs to fulfil the patentability requirements in India, as provided under The Patents Act, of 1970. For applying and obtaining a patent in India, the owner of the invention must follow the patent registration process in India.
This article aims to delineate and elaborate upon the patent registration process in India in the following manner:
Before an invention is patented, it needs to fulfill the patentability requirements in India as laid down under The Patents Act. These include Novelty of the subject matter of the invention, Inventive Step or Non-Obviousness of the invention, and the Industrial Applicability of the invention. In addition to this, certain inventions, as laid down under Section 3[2] of The Patents Act, are not patentable.
After this, the first primary step is to conduct a thorough search to ensure the novelty of the invention. This is usually done by searching the database of the Indian Patent Office for existing patents and published applications. Depending on the scope of the invention, the search may also be performed on international databases such as WIPO or USPTO.
The next step after confirming the patentability requirements in India is patent application drafting in India, which involves drafting a detailed application with all specifications and claims. At this stage, the applicant may commence the patent application procedure. Indian applicants are required to complete Form 1 of the Indian Patent Application and furnish Form 2 patent specifications for each patent application. Applicants can choose between provisional and complete patent applications, depending on the stage of development of the invention. If the innovation is still being tested, it is advisable to file a provisional patent application, which allows a 12-month window to finish the invention and file a complete patent application.
Patent application drafting in India requires that the application include a full description of the invention, as well as any necessary drawings and schematics. It should also include a detailed explanation of how the idea works and how it differs from existing solutions. It is recommended to seek the aid of a patent agency or a patent attorney to design the patent application to ensure that it meets all requirements.
After the patent application has been drafted, it must be submitted to the Indian Patent Office with the required filing fee. The application can be submitted online or offline. The patent office will provide a receipt of the application acknowledgment. The patent application is required to be submitted along with multiple application forms, such as:
Once a patent application is submitted to the Indian patent office, it is published in the official patent journal. Generally, it happens 18 months after the filing of the application. If the applicant wants to request early publication, he is required to submit a request for early publication per Form 9. In certain conditions, the publishing may be restricted such as when the application is incomplete or there is a withdrawal request by the applicant or there is a direction of secrecy under the Patents Act. Through this publication, the public will be able to view the application and voice any objections or opposition.
Each application for protection via patent is reviewed before granting a patent. The applicant is required to apply for examination via Form 18. After the application is submitted, it is forwarded to the patent officer, who examines it to ensure that it complies with the patent laws and guidelines of India. The officer conducts a thorough search by analysing the relevant inventions and lists down the objections in detail if any in a report called the First Examination Report (FER). In case there are objections, the applicant is required to make changes to the application, for which they can ask for an extension via Form 4.
If the application is found to be in order and all objections are cleared, the Patent Office will grant the patent and it will be published in the Patent Office Journal. Once a patent is granted, it gives the inventor the exclusive right to use, produce, sell, or import the invention in India for 20 years beginning on the date when the patent application was filed.
The holder of the patent is required to pay an annual fee for patent renewal every year. The maximum number of years for which a holder can renew the patent is 20 years from the date of applying for the grant of the patent.
With globalization and the advancement of technology, innovative inventions to simply human existence have increased exponentially. The patent application process is a critical component of protecting such inventions. It allows inventors to protect their inventions and profit from their commercialization, hence increasing innovation and economic progress. The patent registration process in India ensures that an invention satisfies patentability requirements in India such as novelty, non-obviousness, and industrial applicability. It encourages inventors to invest in Research & Investment, which can lead to technological advancements and overall economic prosperity. To properly comply with the patent application process, inventors must understand it and seek the aid of experienced patent attorneys.
The time it takes to obtain a patent in India varies greatly and is determined by a variety of factors. Depending on the complexity of the invention and the backlog of pending applications at the Indian Patent Office, the patent application process can take anywhere from 1 - 5 years, or even longer. Any objections raised during the examination, the need for amendments, and the applicant's response time can all affect processing time. Additionally, for certain patent applications, expedited processing is available, which can result in a faster patent grant.
Yes, a foreign entity can apply for a patent in India directly or through an Indian patent agent. However, Foreign applicants must provide a service address in India for communication purposes. Furthermore, to begin the patent application process in India, foreign applicants may be required to submit certain documents, such as a power of attorney or proof of right to file the application.
The benefits of obtaining a patent in India include exclusive rights to prevent others from making, using, selling, or importing the invention, the ability to license or sell the patent, the potential for revenue generation, increased marketability and competitiveness, infringement protection, and enhancement of the company's image and reputation. In the event another individual violates any of the rights of the patent holder, he will be subject to patent prosecution.
[1]https://ipindia.gov.in/writereaddata/images/pdf/oatent-office-procedures.pdf.
[2] Section 3, The Patents Act, 1970.
[3] Section 8, The Patents Act, 1970.
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