HOW TO FILE A PATENT APPLICATION IN INDIA?

Innovation, invention, and intellectual wealth are the driving forces behind a nation’s economic development. A patent is an exclusive right given by the government to the claimant of an invention for a limited time, generally 20 years from the date of filing, given the entire disclosure of the invention. The Indian Patent Law The Indian patent law is outstanding legislation that intends at balancing the interests of the ordinary person and inventors alike.

 

Before one goes ahead with the patenting process, one needs to decide if they will be bearing the patent process themselves or are willing to seek professional help. When we consider the number of deadlines and their impact, it is recommended that you engage a patent professional who has experience in the patent field. Who can file a patent? Section 6 of Chapter 3 Indian Patent Act 1970, specifies who can apply for patent registration. Any person who claims to be the first and true inventor of any invention. Any person who is declared as the assignee by the first, true inventor. A legal representative entitled in such a manner can also file a patent in India.

Where to apply?

Application for the patent grant can be submitted online or by presenting a paper application, and the claimant can also file an application form in physical mode at the suitable patent office. What are the criteria for patenting in India? In India, patenting an invention generally requires fulfilling four prerequisites under the Indian Patent Act 1970 to be considered fit for being patented. First and foremost, the said invention should be Novel. Second, it should have an Inventive Step. It should be Non-obviousness to a person skilled in the art. The third is Industrial Applicability. The product or process should be made or used in an industrial setting. The fourth and the last is that the invention should not fall under Sections 3 and 4 of the Indian Patent Act. After completing the patentability search, you can follow these simple steps for the application procedure.

 

Making an application for grant of the patent through Form 1 Provisional/complete specification through Form 2 File From-3 – foreign filing Undertaking; From-5 Declaration of Inventor-ship.

Patent Procedure:

An inventor/applicant can file a provisional application relating to an idea or a concept. This application is temporary. It is usually done for establishing priority for an idea with minimal technical details. Within twelve months, a complete specification must be filed to refrain from the priority lapse. Complete patent specification is to be filed in the patent office to oblige an invention’s rights and its details presented in the draft. Technocrats generally file it in a techno legal language defined by boundaries set by the claims of the invention.

The complete specification must contain the following components:

Title of the invention – Pick a proper invention title within 15 words that denote the patent application;

Field of the invention – A brief domain to which the patent application belongs and precisely what problem it proposes to solve.

Background of the invention – A background needs to be given regarding the lacuna’s of the conventional patent applications and an account of how the present patent application overcomes those shortcomings.

Objects of the Invention – One single object/advantage is enough, but you can multiple advantages for your invention.

Summary – Summary is generally in the lines with the claim, and sometimes it is a paraphrasing of the claimed features

Brief Description of Drawings – Introduction of the drawings that support the claims of the given patent application diagrammatically.

Detailed Description of Drawings – This segment elaborates the drawings in detail to provide in-depth knowledge of the complete patent application and support claims with additional details such as experimental details of the complete patent application and the advantage.

Claims – This section is utterly essential and has to be drafted broadly, specifying novel aspects of the complete patent application.

Abstract – This part is a summation of the elemental characteristics and peculiarities of the complete patent application.

Statement and undertaking under Section 8(this is particularly needed where a patent application is already filed in a country other than India) through Form 3 Declaration as to inventor-ship through Form 5 Form 26 – Form for authorization of a patent agent (only required if you are using a patent agent to help you apply) Forms submitted only by start-ups and small entities through Form 28.

Priority documents – If the applicant wishes to claim priority from a foreign patent application and enter India, you may be required to provide the priority document as well Publication of Patent Application The official journal prints patent applications filed with the IPO.

The publication process usually takes about 18 months following the filing of the application. Publishing it sooner requires the filling of form 9 (Early publication). The date of publication is significant as your royalties and rights start from the date of publication, although you are not in a position to enforce your rights by way of any infringement proceedings till your patent is granted. Note- It is also essential to know that there are some scenarios in which a patent application is not published and is kept secret. Secrecy Directions have been imposed under patent law. Non-disclosure rules are imposed if an invention falls into a category contrary to national interests.

Failure in submitting the complete application within 12 months from the date of the provisional application.  The applicant made a withdrawal request. Such requests must be made at least 3 months before publication. Therefore, it is 15 months from the priority date of the standard patent filing process for practical reasons. The Patent Office Journal is issued every Friday with the following specifications [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 with Abstract. Number of claims Drawings(if present)

Pre grant opposition Post-publication, the public or any person/party interested can file a request to the controller and oppose the patent by writing an application to the controller. Examination of Patent Application  The patent applications are thoroughly protected and must be examined before the final patent is granted. The examination process ultimately checks the application for the invention defined and claimed in the patent specification. The examination of the patent application in India, unlike publication, does not occur automatically by way of filing the Indian patent application. The claimant must explicitly request the concerned authority to examine their patent application via Form 18. Solely when a Request for Examination (RFE) is received, the application will be queued for inspection and examination.

If the claimant wishes to fast track their patent application further and skip the queue, they can file a request for expedited examination (Form 18A).  Eligibility for requesting Expedited Examination An expedited examination is only available to the applicant if – the applicant entity is a start-up. The applicant preferred the Indian Patent Office as the International Search Authority (ISA) or International Preliminary Examining Authority (IPEA) during their PCT application. The examiner will study the patent application to ensure that it is as per the Patent Act and Rules during the examination process. The examiner also searches to know and comprehend similar technologies to ascertain if the invention would satisfy the patentability criteria. Based on the review, the examiner will issue an Examination Report to the applicant, stating the grounds for any objections. The authorities issue the first examination report (FER) to the applicant. Rules to remember while filing a Patent Application in India

1. The First Schedule stipulates the fees that must be paid in conjunction with the application and award of patents and other matters for which fees must be paid.

2. When filed physically, the patent applications and other papers attract an extra charge of 10%.

3. Fees payable can be charged in cash, electronically, or by bank draft or banker’s check at the designated office. As the patent process goes up to several years, the pricing may vary based on the actions implemented and whether a patent professional or firm was engaged during the process.

 

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