The word “patent” continues to be the most desirable word in the business and research and development community that is being searched over the internet for more information and guidance. Possibly, you are influenced by reading about patent-related news and influenced by the idea of owning intellectual property right for invention, and you are trying to find information on:
How to get a patent in India?
The question might arise in minds of anyone who may be a:
- Business owner: With an idea or product to patent
- Research Scientist: With a new conception, formula to patent
- Professional/ Employee: With a new idea for software or a business method
- ME or Ph.D. holder: With a research project to patent
- Student: With an intent to learn more about patents and how they can protect your ideas
What is a patent?
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.
Is my idea patentable?
An idea may be patentable provided it qualifies certain criteria prescribed like a new process, machine, or combination and composition of different matters, for the patent to be granted it is also required that the work be non-obvious and unique. Below mentioned are essential criteria that the work must fulfill, in order to be eligible for a grant of a patent-
For an invention to be patented it is essential that the work is unique and novel. It should not have been made before, nor been published or described in any patent application before. It is of prime importance that the work in question should be different from already existing creations in any way and has not been made by anyone before. The requirement for the work to be new, unique, and not within the public domain is provided in Section 2 (l) of the Patent Act, 1970.
As the term suggests, the work should not be obvious to society. It should not be such that could be easily predictable by a person who is skilled in that art. An idea to combine two things is not something on which a patent can be granted. For instance, an idea of a pencil having an eraser at its other end, thereby combining the two products, i.e., a pencil and an eraser, cannot be patented. There has to be a uniqueness to such a combination which makes an obvious idea, a not-so-obvious invention. Sec 2 (ja) of the Patent Act 1970 provides the need for an “inventive step” for a work to be patented.
Sec. 2 (ac) defines industrial applicability, according to which work must have a practical utility in industries in order to be granted a patent. The invention should not be vague or exist in the abstract. It should be something having utility and practicability for industrial purposes.
How to apply for a patent in India?
In India, the Patents Act is the central body dealing with the filing and regulation of an existing and new patent. This Act suggests that either the inventor, his assignee, or one of his legal representatives (in case the inventor is deceased) can apply for one in the head office of the Indian Patent Office or the branches of the office, depending on the jurisdiction of the applicant.
In case the applicant is not an Indian citizen, he or she must file the application in their respective jurisdiction (where the address for service of the applicant is located).
How much does it cost to get a patent in India?
The general cost of getting a patent registered may start around 40,000 – 50,000 which includes multiple processes like extensive Patentability Search, Filing and Application for a patent, Patent Drafting, Request for Examination, Responding to Objections (if any).
1. Description of Invention
If you have worked on the invention during the research and development phase you should have something called a lab record duly signed with a date by you and your respective authority.
Preparing a detailed description of the invention (idea or concept) inclusive of information such as:
- What is the idea/invention and how does it work?
- What problem is being solved through my innovation idea
- What is the field of my invention?
- What are the elements of my innovative idea?
- How can I draw a block diagram, device, flowchart, or sketch for the purpose of explaining my invention?
- What are the advantages of my invention over preexisting knowledge that is art?
- Who are my competitors and what product/service are they offering?
During the research and development phase, a lab record should ideally be maintained by you sighting your work on the innovative idea, which has further been duly signed (with a date) by you and your respective authority.
Drawings, diagrams, or sketches should be included and further designed to explain the working of the invention in a better way using visual illustrations as they play an important role in the patent application.
2. Patentable Subject Matter
Checking whether the invention is a patentable subject matter as all inventions may not meet the required criteria. As per the Indian patent act, there are certain inventions that are not patentable.
3. Patentability Search / Novelty Search
We at IPLF will help you find out whether your invention meets all patentability criteria as mentioned below:
- Industrial application
The objective of the patentability search is to find out the novelty and non-obviousness of the invention, it identifies the closes possible prior arts (known to the public) relating to your invention, based on which an opinion about the patentability of your invention may be provided by a patent attorney.
Based on the results mentioned in the patentability/novelty search report the patentability opinion may be positive, negative, or neutral. A positive patentability opinion indicates you stand a good chance to get your patent granted for your invention.
The patentability search report gives you an overall picture of the state of the art that is the current stage of technology, and you may find some white areas where you can do further research and development. This report saves time, effort, and cost for the inventor by helping him decide whether to go ahead with the patent filing process or not, as chances are that what is thought as a novel might already be patented or known to the public in some form of information.
Further, the inventive step identified via the search can be leveraged while writing a patent application and especially claims of the patent, such that our patent application stands a good chance going through the examination stage to a granted patent.
- Cost: The professional fee would start at Rs. 15,000 for performing a patentability / Novelty search
- Time: The time required is about 6-8 working days
4. Drafting a patent application
A patent is a techno-legal document, technical as well as legal, therefore Patent drafting/writing is a specialized job that requires years of practice and experience with patent law to draft a good patent application. There are various rules to be taken into consideration while drafting claims, writing detailed descriptions, writing different embodiments of the invention, describing inventive steps, etc.
The application written by our experienced patent agents/attorneys survives not only through the examination phase till the grant of a patent, but also the commercialization phase where actual money is made by licensing or selling patent rights, keeping in mind that even competitors should not be able to work around your patent.
- Cost: The professional fees would range from Rs. 25,000 to Rs. 45,000 for patent drafting or writing.
- Time: The time required is about 10-15 working days
5. Filing a patent application in the Patent office
After a patent has been drafted and reviewed with our clients, it is further filed in the government patent office and a receipt is generated with the patent application number. The following are the different types of patent applications that can be filed:
(i) The provisional Patent application (Optional Step):
In cases of early stages in the research and development for your invention, a provisional patent application can be filed as it provides the following benefits:
- Secures filing date
- 12 months of time to file complete specification
- Lower cost
(ii) Complete patent application:
If all the required details about your invention (that is implementable details) are available, you may proceed with filing a complete patent application. The number of details required to proceed with filing a patent application is explained in the “Invention disclosure form” and the relevant form for a patent application is Form 1.
6. Publication of patent application
The application is published after 18 months of first filing, upon filing the complete specification along with the application for patent. An early publication request can be made along with prescribed fees. Generally, the patent application is published within one month from the request for early publication.
- Rule 24 – The period for which an application for patent shall not ordinarily be open to the public under sub-section (1) of section 11A shall be 18 months from the date of filing of the application or the date of priority of the application, whichever is earlier. Provided that the period within which the Controller shall publish the application in the journal shall ordinarily be one month from the date of expiry of said period, or one month from the date of the request for publication under rule 24A.
- Rule 24A – A request for publication under sub-section (2) of section 11A shall be made in Form 9 and by paying prescribed fees.
(i) Request for Examination
Upon receiving the request for examination (RFE), the controller gives the patent application to a patent examiner who further conducts the examination basis different patentability criteria such as:
- Does the invention belong to Patentable subject matter?
- Does it have Novelty?
- Does it have Non-obviousness or an Inventive step?
- Is it capable of Industrial application?
The examiner creates a FER (First examination report) which is further submitted to the controller generally containing prior arts (existing documents before the date of filing) similar to the claimed invention, and the same is reported to the patent applicant.
(ii) Expedited Examination of Application (Rule 24C)
An applicant may file a request for expedited examination in Form 18A along with the fee on any of the following grounds, namely: –
- India has been indicated as the competent International Searching Authority or elected as an International Preliminary Examining Authority in the corresponding international application; or
- The applicant is a startup
An expedited examination request can be filed if a woman is an applicant or co-applicant.
7. Prosecution of patent application
The Majority of patent applicants receive some form of objections, as mentioned in the first examination report. The examination report must be analyzed by our professional patent attorneys to create a written response to the objections raised, to prove to the controller that the applicant’s invention is indeed patentable and satisfies all patentability criteria.
Further, this is a chance for an inventor to communicate his novelty over prior arts found in the examination report.
If the objections raised in the first examination report remain unresolved, a hearing can be requested wherein the inventor along with the patent attorney can discuss the resolution of objections or make changes to the patent application as per the suggestion of the examiner (panel).
8. Grant of patent
Once the application meets all the patentability requirements, the application would be placed in order for grant. Further, the grant of patent is notified in the patent journal which is published from time to time.