In the fast-paced business environment, where anybody can steal your idea, innovation, and hard-earned money with just one click. In this scenario, the protection of intellectual property has become more essential than ever. Patent Registration is one of the protections given to intellectual property in India.
A patent is an exclusive right granted to the inventor for their Invention by the Government of India. The first invention to receive patent protection in India was ‘An Efficient Punkah Pulling Machine’, for which exclusive privileges were granted in 1856 to George Alfred DePenning, a civil engineer from Calcutta.
When a patent is registered, the creator gains exclusive rights to his innovation and invention. It gives the invention legal protection, guards against intellectual property violations, establishes a distinctive brand in the market, draws in investors, and stimulates innovation. It inspires other innovative thinkers to seek ground-breaking discoveries and innovations in technology.
Recent data shows that more than one lakh patent applications are now filed in India every year. Nevertheless, a lot of entrepreneurs underestimate the significant advantages of patent registration and fail to recognise its significance. In this guide, we shall understand what a patent is, what patent registration is, why it is essential, what can be patented in India, what the criteria for patent registration in India are, where to apply for patent registration, and what essential documents are required.
Section 2(1)(m) of the Patents Act, 1970 defines a patent as “a patent for any invention granted under this Act”.
A patent is an exclusive intellectual property right granted to the inventor for a new concept or an improved solution to an existing problem. This right protects the innovation from being copied or used without permission. The registration process follows the Patents Act, 1970 and the Patents Rules, 2003 (as amended from time to time). A patent is granted only if the invention is new, involves an inventive step and is capable of industrial application, and only after examination by the Patent Office.
Patent registration grants the inventor the right to sell, manufacture, use, and process the invention. It also prevents others from making identical copies of the product. Patents registered by the Indian government provide legal protection, which can be used as evidence in court. In India, a patent is valid for 20 years from the date of filing, provided renewal fees are paid every year; it cannot be extended beyond 20 years.
Patent registration is essential in India due to the following reasons:
A patent can be obtained for a variety of inventions in India, including:
You cannot patent everything. Some inventions are not eligible, such as:
To file for a patent registration, the invention must meet the following eligibility criteria:
There are four patent offices in India where one can apply for patent registration. The jurisdictions of these four offices differ from one another. The applicant's home or place of business, as well as the location of the invention's real genesis, determine which location is relevant for deciding jurisdiction for a patent claim. Below is a list of the several offices and their corresponding jurisdictions:
The following individuals or identities can file patent registration applications:
Patent applications are filed at the relevant patent office using Form-1, and the necessary fee is charged at a patent-registered patent office. The following factors determine the jurisdiction of a patent office:
| Form | Purpose |
|---|---|
| Form-1 | It is one of the fundamental forms of patent registration in India. In the form, the following details need to be filled: The applicant's name, address, and a few other fundamental facts must be entered into this form. |
| Form-2 | The invention title must be submitted using Form-2, followed by the applicant's name, address, nationality, and other details in the preamble to the description. |
| Form-3 | This form concerns the Undertaking and statement. The applicant must submit it either along with their application for patent registration or within six months after the application. |
| Form-5 | Form-5 is the declaration as to inventorship. It names the inventor(s) of the invention and is filed along with the complete specification. |
| Form-26 | If you hire a lawyer or authorise any other person to file the patent application on your behalf, this form discusses 'Power of Attorney' for your patent registration. |
| Form-9 | The procedure for applying for a patent is lengthy, but if you want it early, you can use Form-9 to request early publication. |
| Form-18 | Since the examination procedure is not automatic, a request for it must also be submitted. It must be filed within 31 months from the priority date or filing date, whichever is earlier (48 months applied only to applications filed before 15 March 2024). Someone other than the applicant may also take the same action on behalf of the applicant. If the request is not filed within this time, the application is treated as withdrawn. |
| Form-28 | This specific form pertains specifically to startups and small business enterprises, not to individuals. |
Furthermore, you also need to attach permission from the National Biodiversity Authority if the proposal uses biological material that was obtained from India. The source of biological material should be indicated in the specifications if any biological material is mentioned.
The following paperwork is required in order to submit an application for patent registration in India:
In order to obtain a patent in India, it is necessary to carry out extensive research for patents in India and the registration procedure is broken down as follows:
Conduct a thorough patent search as the first step in determining whether the innovation is original. Looking up the invention's patentability. It is wise to conduct a comprehensive investigation into patentability to ascertain the possibility of obtaining a patent prior to applying for one in India. To ascertain patentability, visit the IP India public search at https://iprsearch.ipindia.gov.in/PublicSearch/. Remember that you don't need to do this step alone.
After the international search for the application is finished, the patent specification is written. Technical and legal claims made by the inventor may or may not be included in this paper. If there are no claims, the specification is tentative; if there are, it is comprehensive. The invention is described in detail, together with valuable examples and the optimal way to put it into practice, in the specification. When a patent specification is comprehensive and includes all of the inventor's claims, it is legally protected.
Once the patent specification is created, you can apply for a patent in India. Applications may be complete or preliminary, depending on the drafted specifications. The Provisional or Complete Specification is filed in Form 2 in compliance with the Indian Patent Act, whereas the Patent Application is filed in Form 1. You have a year to file a complete patent specification that contains the inventor's claims if you have previously submitted a provisional one.
The application is published in the Official Journal of the Patent Office 18 months from the date of filing or priority (or earlier, if early publication is requested in Form 9). After publication and before grant, any person can file a pre-grant opposition on the grounds given in Section 25(1) of the Patents Act, 1970.
Only after an explicit request for examination has been made is the patent application examined. This request needs to be filed within 31 months of the priority date or filing date, whichever is earlier. A chosen patent examiner thoroughly reviews the application and then reports any problem discovered throughout the examination. A reply to the First Examination Report (FER) must be filed within six months of its issue, which can be extended by up to three months on request. In order to address these issues, known as patent prosecution, the examiner may, if necessary, call the applicant or representative to a hearing.
The Patent is granted if all of the officer's concerns have been addressed. However, if the objections are not resolved, the Controller may refuse the application after giving the applicant a hearing, and the applicant can appeal against the refusal before the High Court.
After grant, the patent must be kept in force by paying renewal fees every year from the third year onwards. A patent lasts for a maximum of 20 years from the date of filing and cannot be renewed beyond that.
Keep the following guidelines in mind while submitting a patent application:
An Indian patent is valid for 20 years from the date of filing of the application (provisional or complete), subject to payment of yearly renewal fees. After 20 years, the patent expires and the invention enters the public domain; it cannot be renewed further.
Patent renewal means paying the renewal fee every year, from the third year onwards, to keep a granted patent in force. If the fee is not paid on time, the patent lapses, though it may be restored within 18 months under Section 60.
As per Section 64 of the Patents Act, 1970, a patent can be revoked by the High Court on grounds such as lack of novelty or inventive step or the invention not being useful, and under Section 66 the Central Government can revoke a patent in the public interest. A patent also lapses if the renewal fee is not paid.
The patent Registration in India may be cancelled due to the following reasons:
A patent granted in India is valid only within India. To protect the invention in other countries, you must apply there (directly or through the PCT route), and to claim the Indian filing date as priority you must do so within 12 months of first filing in India. Indian residents also need the Patent Office’s permission before filing abroad, unless the Indian application was filed at least six weeks earlier (Section 39).