Introduction
To understand what a Patent filing is, it is important to first understand what a Patent is.
A Patent is a right given by the Government of a country for an invention. It gives right to stop others from copying the invention. Patent rights are given for a period of 20 years.
What is a Patent filing?
To get the Patent for the invention, one must file a Patent application in the Patent Office. The Government has set the laws and rules for filing a Patent in India. One has to follow those laws and rules while filing a Patent. To file a Patent, the Patent office requires technical details of the invention along with other details. One must first write the technical details of the invention in a set format. Also, one has to provide the inventor and applicant details.
Patent filing in India can be done in two ways. First way is an offline way and the second way is an online way. In the offline way, one must file the hard copies of the documents. In the online way, one must file all the documents online. One must know that the online India Patent filing fee is less than the offline India patent filing fee. Also, the online India patent filing does not ask you to submit the hard copies to the Patent office.
Patent filing in India is not an easy task. It is a complex process and one must also meet the timelines. One important part of the Patent filing in India is writing a technical document in a set format. There are few legal parts also one must follow while writing the technical document. One can take the help of Patent experts for the writing and filing of a Patent document in the Patent office. They can also help you to avoid the complex process of the Patent filing. Patent experts can write the technical document on your behalf as per the set format and can help you with smooth filing.
In conclusion, Patent filing is a complex process which requires technical and legal skill set. One must follow the set process and laws to get a Patent. Our team can help you in writing the best Patent document and help you to navigate the complex process of Patent filing in India.
FAST AND SEAMLESS PATENT FILING IN INDIA
The Basics of Patent Filing in India
A Patent is one of the forms of Intellectual Property Rights (IPRs) that gives the owner exclusive right for restricting others from using, making, selling, offering for sale and importing of Patented product or process of the Patented invention or idea without his/her consent.
This advantageous concept provides an edge to the Patent holder to market their products and maximize revenue in monopoly. Many companies in today’s market reality are opting for Patent Protection.
If you have toiled hard mentally, physically, and invested monetarily to evolve an idea, an innovation or an invention, a Patent will safeguard your interests. Patent Grant Certificate is a reward and recognition from the government allowing sole monopoly to the Applicant for his/her creation for twenty years from the priority date of the invention.
Like other countries, the procedure for filing Patent in India is governed by the Indian Patent Office in India. The Indian Patent Office is administered by the Office of the Controller General of Patents, Designs & Trademarks (CGPDTM) and it takes care of Patent Filing and Prosecution. The office works with its Kolkata, Chennai, New Delhi and Mumbai branch offices.
The patent filing process in India to get Granted or Registered Patent follows streamlined stages and once conferred holds for twenty (20) years within the territory of India.
WHAT IS A PATENT?
According to the Indian Patents, Act 1970:
“Patent” means a Patent for any “Invention” under Patents, Act 1970.
“Invention” means a new Product or Process involving an “Inventive Step” and “Capable of Industrial Application”.
- “Inventive Step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
- “Capable of Industrial Application” means that the invention is capable of being made or used in industry.”
In order to obtain a Patent Registration, certain prescribed eligibility criteria as per the Law need to be fulfilled. Below are few points that should be considered before filing a Patent in India:
NOVELTY/PATENTABILITY SEARCH: A CRUCIAL STEP BEFORE PATENT FILING IN INDIA
Before embarking on a Patent filing process in India or elsewhere in other jurisdictions, it is always advisable to have a fair idea about the below points:
- To qualify for ‘Novelty/Newness’ : An Invention or Technology should not be anticipated by the publication in any document or should not be used in the country or elsewhere in the world before the priority date of Patent filing.
- To qualify for ‘Inventive Step/Non-Obviousness’ : An Invention should have technical advance as compared to the existing knowledge or having economic significance or both, and that makes the invention not obvious to a person skilled in the art. It should not just be a mere workshop improvement that can be reproduced by any skilled person of the field.
- In order to qualify for ‘Capable for Industrial Application’ : An Invention should be capable enough of being made or used in industry.
- In order to qualify for ‘Patentable Subject Matter’ :
- An Invention should not fall in the category of Non-Patentable Subject Matter that has been detailed under Indian Patents, Act 1970. The Act clearly prescribes the following under Non-Patentable Subject Matter :
- “an invention which is frivolous, or which claims anything obviously contrary to well established natural laws;
- 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;
- the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
- the mere discovery of a new form of a known substance which does not result in the 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.
- a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- a method of agriculture or horticulture;
- any process for the 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.
- plants and animals in whole or any part thereof other than micro- organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals;
- a mathematical or business method or a computer programme per se or algorithms;
- a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- a mere scheme or rule or method of performing mental act or method of playing a game;
- a presentation of information;
- The topography of integrated circuits;
- an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components;
- Inventions relating to atomic energy not patentable.”
- An Invention should not fall in the category of Non-Patentable Subject Matter that has been detailed under Indian Patents, Act 1970. The Act clearly prescribes the following under Non-Patentable Subject Matter :
HOW IT’S DONE?
Below are the steps for Patent Filing in India:
The process for the Patent Filing in India starts with the filing of Patent Application in the designated Patent Office and only defined Applicant is eligible for filing a Patent Application in India for Patent Grant.
For Patent Filing in India, Indian Patent Office accepts the prescribed Forms and documents along with the Official fees as given under the First Schedule of Patents Rule.
Below is the prescribed Forms and documents which need to be filed in the designated Patent Office along with the Official Fees for initiating the patent filing procedure and eventually Patent Registration:
- Form-1 (Application for grant of a Patent): It includes the details of the Inventor(s), Applicant(s), type of Patent Application is filed, title of the invention, certain declarations from the Applicant and signatures of the Inventor(s), Applicant(s) and/or Authorized Person.
- Form-2 (Provisional/Complete Specification): It includes the information for the type of Application, the title of the invention, description, claims (if complete specification), abstract of the invention.
- Form-3 (Statement and Undertaking): It includes a statement and undertaking on behalf of the inventor for updating the Controller for any foreign filing Application filed for Patent registration.
- Form-5 (Declaration as to Inventorship): A declaration as to Inventorship must be filed in the Indian Patent Office.
- Form-26 (form for authorization of a Patent Agent/Patent Attorney or any person in a matter or proceeding under the Act): In the case where Patent Application for Patent Registration is filed by the Patent Agent or the Patent Attorney whose services are taken by the inventor(s), a form for authorization must be submitted in the Patent Office.
Out of the forms mentioned above, Form 1 and Form 2 along with the official fees are mandatory to be filed to initiate the Patent filing procedure. Without the submission of at least Form 1 and Form 2, a date of filing of the Patent application cannot be granted by the patent office. Although it is not advisable, but in some situations Form 3, Form 5, and Form 26 can be submitted after the submission of Form 1 and Form 2 within stipulated timelines to complete the Patent filing procedure in India.
Further, in the case where Patent Application for Registration in India is based on the previous Patent Application filed abroad under the Convention Patent Application (as under the Paris Convention) or PCT route, a Priority document must be filed along with the application.
In the case where the previous Patent Application is in a language other than Hindi or English, a Verified Translation of the same also needs to be submitted to the Indian Patent Office. - Form-28 (To be submitted by a small entity/start-up): In order to take benefit under the category of small entity/start-up, proof or evidence needs to be submitted. At last, all the documents, Forms or Drawings must be signed by the authorized person or the inventor.
STRATEGY FOR PATENT FILING
Patent filing is a strategic decision, it gives territorial rights to the Applicant, meaning, if an Applicant is filing a Patent application in India, in that case, Applicant will get the right in Indian only and not in the other countries.
Therefore, for securing the rights in other countries, filing of Patent application in those countries can be strategized after completing the Patent filing procedure in India in future within stipulated timelines provided by the Indian Patent Office.
Are you looking for a Hassle-Free Patent Filing Procedure in India?
The patent filing procedure in India is a meticulous task requiring technical and legal knowledge and expertise. The Patent procedures do not end with Patent filing in India, but it is the start of the patent procedure. There are 30 forms, intermediate Patent procedures, fees and time lines that need to be followed to obtain Patent registration. Therefore, it is important to know the Patent filing process in India before starting your Patent registration journey.
Understanding of “Patentable Subject Matter”, “Novelty/Patentability”, jurisdiction of offices for Patent filing, drafting of provisional/ complete specifications, drafting of responses (if any), and many other filing formalities are some of the important details that one should not miss.
Our organization can equip you with the best way to navigate the complex Patent filing procedures in India with expert advice.
