What is a Patent? A Definitive Guide to Patents in India

What is a Patent?

Intellectual property, particularly patents, is among the most important intangible assets of a business, particularly one that relies heavily on invention and innovation.

Given that developing any type of invention takes a significant amount of time and money, it only makes sense to protect an invention by patenting them.

Obtaining a patent for your invention ensures that no one else claims your invention as their own.

Even if someone sells a copy of your patented invention or manufactures a product that overlaps with your patent – they can be stopped on legal grounds.

Also, legal action can be taken to prevent others from benefiting from your patented invention.

This blog throws light on everything you need to know about patents in India.

What is a patent?

A patent is a government-granted right that prevents others from making, using, selling, or importing the patented product or process without prior approval.

The first step an innovator takes to protect his or her invention from being misused is patent filing or patent registration.

Patent filing in India is a relatively complicated process, but with the correct legal guidance, it can be completed quickly with the help of expert patent practitioners.

A patent can be applied for by anyone who seeks to defend an invention or an idea.

What is patent right?

Patent Rights refer to the rights to issued patents and pending patent applications in any nation, such as all provisional applications, continuations, substitutions, continuations-in-part, renewals, divisions, all letters patent granted upon, and all reissues, re-examinations, and extensions thereof.

Types of patents

There are three types of patents:

1. Utility patent

Utility patents could be given to anybody who invents or uncovers any new and useful process, machine, article of manufacture, matter compositions, or any new useful advancement thereof.

2. Design patent

Anyone who creates a new, unique and ornamental design for a manufactured item may be granted a design patent.

3. Plant patent

Plant patents could be given to anybody who invents or uncovers a unique and new variety of a plant and reproduces it asexually.

What is patentable in India?

Sections 3 and 4 of the Indian Patents Act, 1970 clearly specify what cannot be patented in India. Our previous blog post explained in detail which inventions cannot be patented in India. That leads us to ask what can be patented in India.

It should be noted right away that the answer is not cast in stone. There is no comprehensive list of what can be patented.

There are, however, definite conditions that must be met for an invention to be patentable. The potential of an invention to meet the criteria determines its patentability.

Criteria for granting patents as per the Indian Patent Act 1970

1. Patentable subject matter

The first thing to consider is whether the invention relates to the patentable subject matter. The non-patentable subject matter is defined in Sections 3 and 4 of the Patents Act. As long as the invention complies with Sections 3 or 4, it has patentable subject matter subject to other criteria being satisfied.

2. Novelty

The novelty of an invention is an essential factor in determining its patentability. According to Section 2(l) of the Patents Act, novelty refers to any invention or technology that has not been predicted by publication in any document or used in the country or anywhere else in the world before the date of filing of a patent application that includes complete details.

The subject matter of the invention should not fall into the public domain or that it does not form part of the state of the art.

In simple terms, the novelty requirement requires that an invention must never have been published in the public domain. It must be unique, with no prior works of the same or similar nature.

3. Inventive step

According to Section 2(ja) of the Patents Act, an inventive step refers to the feature of an invention that involves technical advance as compared to existing knowledge or has economic significance or both.

Simply put, an inventive step should make the invention not obvious to a person skilled in the art.

4. Industrial applicability

According to Section 2(ac) of the Patents Act, the industrial applicability of an invention refers to its capability of being made or used in industry.

In simple words, it means that an invention cannot exist in the abstract. An invention must be useful and applicable in the industry for it to be patentable.

What is not patentable in India?

According to the Indian Patent Act 1970, the following are not patentable:

  • An invention that is trivial or that contradicts well-established natural laws
  • An invention whose main or intended use would be illegal, immoral, or harmful to public health
  • Simply discovering a scientific principle or developing an abstract theory
  • The mere discovery of a new property or new application for a known substance, or the mere application of a known process, machine, or apparatus, unless the known process leads to the creation of a new product or uses at least one new reactant
  • A substance produced by a simple admixture that results only in the aggregation of the properties of its constituents, or a process for producing such a substance
  • The simple arrangement, rearrangement, or duplication of known devices, each of which operates independently of the others in a known manner
  • A farming or horticultural method
  • Atomic energy-related inventions
  • Any procedure used to treat humans or animals for medicinal, surgical, curative, prophylactic, or other purposes
  • Plants and animals in whole or in part, except microorganisms
  • A mathematical or business method, as opposed to a computer programme or algorithms
  • Literary, dramatic, musical, or artistic works, cinematographic works, television productions, and other aesthetic creations are all eligible
  • A simple scheme, rule, or method for performing a mental act or playing a game.
  • Information presentation
  • Integrated circuit topography
  • An invention that is, in effect, traditional knowledge or is based on traditional knowledge’s properties

The process to search for patents associated with a product is known as patentability search. It is also known as a novelty search and is performed before filing a patent application to make sure that the invention is novel.

This search is critical because no one wants to lose all of their hard-earned money wasted on drafting and filing the patent application. After all, the examiner used a similar concept to your invention as the criteria for rejecting your application.

The inventor, patent lawyer, or patent examiner can determine whether or not someone else has had the same idea by conducting a patentability search for prior art.

If the search results show someone has already worked on a similar idea, you could save money by not applying or you can change/improve your idea so that it meets the patentability criteria.

Conducting a patentability search can help (but does not guarantee) that your patent will be granted. If a patentability search reveals that your idea is unique and meets all of the criteria for patentable subject matter, you can file your patent with confidence that it will be issued.

Given the high costs of filing and prosecuting a patent, it is always a good idea to conduct a patentability search before filing the application.

Steps for patent e-filing in India

You can apply for a patent on your own or with the assistance of a registered agent. When it comes to the cost of obtaining a patent, two factors must be considered:

  • Forms and renewals are subject to government fees.
  • If you decide to use an agent, the professional fees will apply.

It is always advisable to obtain a patent through a registered agent. The following are the steps involved in applying for a patent:

Step #1: Disclosure of invention

The very first step is to inform the professional about your invention. Signing a non-disclosure agreement accomplishes this.

It is recommended that you submit every known fact about your invention. Don’t hold back anything.

Step #2: Search for patentability

Typically, a professional will charge a fee (between INR 10,000 and INR 20,000) at this stage. At this point, your professional carries out extensive research for previous evidence in all databases. He or she will also create a patentability search report based on your invention.

Step #3: Decision to file a patent application

This is the point at which the actual process begins. You can decide whether to proceed with the patent application filing after conducting extensive research on the (any) existing history of your invention.

Step #4: Drafting a patent

You can write the application on your own or with the assistance of a professional. If you choose to seek assistance, you may have to pay between INR 20,000 and INR 30,000.

Step #5: Filing the patent application

Post reviewing your patent draft and being satisfied with the scope and details, you are ready to file for a patent. You can file the patent application in the prescribed manner, with the necessary forms and fees.

When submitting a patent application to the patent office, you must pay fees of INR 1,600, 4,000, or 8,000 (depending on the type of application). If you do not request early publication, your application would be published after 18 months.

Step #6: Submit an examination request

This is the point at which the applicant must request that the Indian patent office examine your application within 48 hours. The examination fees requested range from INR 4,000 to INR 20,000. (based on the type of applicant).

Step #7: Handling objections (if any)

At this stage, the patent draft and report submitted to the patent office officers are thoroughly examined. At this point, the inventor has the opportunity to communicate his novelty or inventive step over any other piece of art discovered during the assessment.

If everything has been clarified and resolved, the patent application is now almost ready for action.

Step #8: Patent Grant

If the application meets all of the requirements, it is considered for the grant. Typically, the final grant of the application is announced in a journal that is published.

Step #9: Renew your patent.

A patent is usually valid for 20 years. The patent owner is required to renew the patent after 20 years by paying a small fee.

On a concluding note

Patents can offer a significant value to businesses and ensure higher returns on their investment in technological innovations. 

Therefore, a smart strategy that aligns corporate interests to deploy the technology with a wide range of possibilities should be used in the quest for how, where, and when to patent.

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