Patent filing in India

PATENT FILING IN INDIA

 

Ever thought out your innovation getting recognition? Well, it all began in the year 1911 with the Indian Patents and Designs Act. Today the amended Patents Act of 1970 is the governing legislation and this Indian legislation is in conformity with TRIPS, hence ensuring that international standard compliance is monitored.

 

A patent is nothing but a right exclusive to the person who applies for it. It could be with regard to a product or a process. However to get the right, three essentials must be satisfied namely new invention, involvement of an inventive step and capability of having an industrial application. Nevertheless, patent cannot be obtained for the inventions listed under sections 3and 4 of the Patents Act, 1970. According to the sections, the invention should not be frivolous, obvious, contrary to law or morality or the mere discovery of a scientific principle does not account as an invention etc.

 

  • If one’s invention fulfills all the above-listed criteria then, he or his assignee can file an application. It is not necessary to engage an attorney for the same.
  • After this, a request for examination is to be made for examination of the patent application by Indian Patent Office (IPO).
  • A pre-grant opposition can be raised by any person in accordance with the grounds under Section 25(1) of the Patents Act, 1970. This is to be filed within six months from the publication of the application.
  • On issuance of the First Examination Report, an opportunity is given to the applicant to meet the objections raised. He is to do so within 12 months. In case of non-compliance, the application is abandoned.
  • Where objections are removed within the said period of 12 months, the patent is granted and published in Journal.
  • Objections can again be raised within 12 months after the publication. This is termed as post-grant opposition.

Grounds for both pre and post-grant opposition are common and includes:

  • Prior publication
  • Lack of inventive step in the invention
  • Patent wrongfully obtained
  • Application not made within due time.
  • Non-disclose of all the relevant information with respect to the invention.

 

In case the opposition is dismissed, the patent is granted for a period of twenty years. However, it is to be renewed every year by payment of prescribed fee.

 

In case of foreign national applying for a patent, application routes as provided under Paris Convention for the Protection of Industrial Property, 1883 and the Patent Cooperation Treaty (PCT), 1970. Under this, if the patent application is filed in any member country of the Convention, the same can also be filed in India. This can be done within 12 months from the date application was made in Convention country. In these cases, the priority date is the date on which application was made in the convention country.

 

A patent grants the patentee certain rights which include right to make an offer for sale, prevent others from using it etc. It must be noted that effective from 20th July 2017, a patent application can also be filed online. Also, it is important for the applicant seeking a patent to prevent disclosure of an invention before its official publication as prior disclosure can be detrimental to the novelty of the invention.

By: Mansi Gupta.

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