A patent gives its owner the right to prevent others from making, using, importing or selling the invention without approval for 20 full years. The process for granting a patent, given the obvious advantages it grants to the recepient, is, therefore, strict and complicated. It routinely takes two to three years for a patent to be granted – and that is if there is no opposition. In case of a challenge, from a rival or research outfit, the process could easily be stretched by another 12 months. In this report, you’ll find out everything you need to know about grant of patents.
Rules Governing Patents in India
Patents in India are regulated by:
Section 39 of the Patent Act, 1970, which was amended on January 01 1995;
Patent rules, 1972, applicable from April 20, 1972, and amended in the year June 02, 1999.
The Patent Office, under the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, is designated to deal with patent applications and awarding/revoking or renewal of patents in India.
Let us start with the types of patents that can be obtained in India.
- Regular Patents
- Patent Additions
Who is eligible for submitting a patent application?
- Patent applications can be made by an inventor, as an individual or jointly, with a partner, or a legal representative or assignee. The name of the inventor may or may not be mentioned, if it is filed by an individual other than the inventor.
- A corporation can register for patents jointly with the inventor or an assignee. The government charges a higher fee in case a corporation applies for a patent.
What inventions are patentable and not patentable?
For a process or product to be patentable, it must be inventive (i.e. not obvious), novel (not anticipated in any published document) and industrially applicable (possesses utility). A patented invention may be art, a manufacturing technology, a machine, apparatus or substance produced or manufactured, and even includes any innovative and useful improvement method for any of the above procedures.
The following items are not patentable:
- Any invention which does not adhere to natural law is rendered inapplicable;
- If the invention can/or intended to be used for unlawful purposes or can cause injury/health threats;
- Any invention which is a principle, a theory and not a proven application and those substances which are produced by mixing the components of already known mixture;
- Any inventions relating to agriculture and horticulture or atomic energy;
- Any application or apparatus assembled from individually available and independently used apparatus;
- In the case of chemical substances produced by chemical processes or any substance to be used as food, the patent will only be awarded for the method of preparation, and not the ‘chemical substance’ prepared itself.
Related Reading – How to Register a Company/Startup in India
The patent filing process in India is long, starting with a search of the patent database by an experienced patent attorney. If the attorney confirms that the patent is available, you should submit the patent application form, along with the following documents.
The following documents are required while submitting the application form for obtaining a patent.
- Specification of the invention in full or partial, in triplicate. In case of the availability of only partial specifications, a detailed or complete specification needs to be submitted within 12 months of submission of application form;
- Three copies of abstract of the invention and any drawings, if necessary, of the product/application;
- Declaration of inventor-ship of the application, with description;
- A power of attorney, in case the patent application is filed by a patent agent or an attorney;
- Fees for the patent (as specified) by cash/cheque or demand draft.
The application, duly filled, should be submitted to the nearest office of the residence/addressee in which the applicant resides.
For NRI/applicants who reside outside India, the office for submission will be according to the address of service in India, as provided by the applicant.
Procedure After Submission
Once the application is submitted, your patent application will go through rigorous steps/procedures in which it will be evaluated for the claim made. Below mentioned are the steps involved in validating/approval of your patent application:
An examination report (first) is communicated to the applicants or agents, stating the reason for objections, if any.
- The applicants are given an opportunity to amend the application or complete specifications in order to meet the objections. The date specified for meeting with the objections is normally within 15 months from the date of first report submission.
- The period can be extended up to three months; however, the requisition for extension should be sought before the expiry date.
- The application will be rejected in case no amendments are made to the objections.
- Once the objections, if any, are met suitably, the acceptance of the patent application is submitted in the Gazette of India, (Part – 3, Section 2). The Gazette publication is deemed open to the public from the date of publication.
- After the notice on the gazette, if any individual or corporation needs to file an opposition to the patent, it needs to be done within four months from the date of publication in the Gazette. Again, here, an extension of one month is available, though the requisition needs to be made before the expiry of four months’ time-period.
- In the circumstances where no opposition is made or the opposition is met with suitably, the patent is granted to the applicant, after a period of six months, and once the sealing fee is paid complexly. A period of 3 month extension is awarded for payment of sealing fees.
Patent Register & Rights
The details of all patents registered and approved can be found in the Patent Register, available in all patent offices and the branch offices. The register contains all details such as the approval date, patent number, the address of the patentee and so on.
Now, there are online registers where one can find the suitable details about all registered/applied patents in India.
The patentee has the sole right of the ownership of the invention for which the patent is granted for 20 years. He or she can, although, for any consideration, assign the right of use to any other individual.
There is a renewal fee for every Patent, and it needs to be paid for the third year of the patent approval.
The fee needs to be paid before the second anniversary of the patent acceptance.
The date of renewal fees is calculated from the date of issue of patents, and the government gives six months of extension for the payment, provided a requisition is submitted in this regard before the expiry of the date.
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