How do I Patent my Idea in India?

ipoThe journey of an inventor begins with an idea and is completed when it becomes an invention. Grooming an idea into an invention involves investing time, money and a gamut of emotions. It is the prerogative of the institution dealing with the grant of patents to ensure a smooth ride for an inventor in fortifying the credentials of the idea into an invention. The Controller General of Patents, Designs & Trade Marks (CGPDTM) is the principal authority to grant patents in India. The Office of the CGPDTM is at Mumbai and branch offices are located at Chennai, New Delhi and Kolkata.

The process of patent acquisition starts with filing a patent application with the patent office. A requisite patentability search followed by drafting of the patent specification (techno-legal document) for the invention precedes the filing process. The steps involved in grant of patent procedure are:

  1. Filing of Patent application (Provisional or complete)
  2. Publication
  3. Examination
  4. First examination report and submission of a response to the first examination report
  5. Rejection or Grant of the patent

Filing of Patent application (Provisional or Complete):

A patent application must be filed in the offices designated by the patent office. The filing must be done at a designated office depending upon the jurisdiction. In case of the inventor residing in a foreign country then the provided Indian address for communication decides the jurisdiction. Provisional application is a pro tem application filed with the patent office when the inventor is of the opinion that his invention is incomplete or may be in need of some changes.

The provisional application when filed gives the priority date advantage to the inventor. The priority date is the date of first filing of a patent application allotted by the patent office which is crucial for the determination of novelty and inventive step. A complete specification is a techno-legal document that includes the description of an invention to conduct it in the best possible method. It is mandatory for an inventor to file a complete specification within twelve months of filing the provisional specification else the application filed would be considered abandoned. It is after the filing of a complete specification that the further procedures involved in the grant of patent are followed. The language for filing the patent application should be either Hindi or English and the controller’s permission is mandatory for filing the patent in other languages.

Publication:

As per chapter 4 of the manual of patent office a patent application is published not before the expiry of 18 months from the date of filing or date of priority, whichever is earlier. The publication takes place in the journal of patent office.

Examination:

An examination of patent application is strictly subjected to request by the applicant or any other person interested. The time limit for putting up a request for examination is within forty eight months (4 years) from the priority date. In case an applicant surpasses the time limit then the application is deemed to have been withdrawn. In a case where secrecy direction has been issued the request for examination may be made within six months from the date of revocation of the secrecy direction, or within forty-eight months (4 years) from the date of filing or priority whichever is later.

In case an examination request is filed by a person other than the applicant then the examination report is sent to the applicant with intimation to the other person. The examination involves a thorough scrutiny determining the; Novelty, Non-Obviousness and Industrial Applicability. Various databases which are listed by the examiner are utilized for any of the parameters if not fulfilled is communicated to the applicant as First Examination report.

First Examination Report (FER) and Submission of a response to the first examination report:

FER is the examination report issued by the patent office to the applicant after the examination. The applicant is given a twelve month time (not extendable) to comply with the requirements based on the FER. If the applicant is not able to comply with or meet the requirement within 12 months, or does not submit the documents which were sent to him for compliance within the said period, the application is deemed to have been abandoned and is accordingly communicated to the applicant. The office objections may include; lack of novelty, inventive step or industrial applicability; subject matter falling as in sec 3 and sec 4 or related to them and non-fulfillment of any other prescribed criteria.

Rejection or Grant of the patent

Post compliance with the FER the application is checked for any pending pre grant opposition status. In case the application is scrutinized to be appropriate for a grant then the patent office grants a patent. On grant of patent every patent is allotted a patent number which is an electronically generated serial number which is simultaneously fed in electronic register. As per section 48 of the office of CGPTM “In case of a patented product, the patentee shall have the exclusive right to prevent third parties, from the act of making, using, offering for sale, selling or importing for those purposes that product in India. In case of a patented process, the patentee shall have the exclusive right to prevent third parties, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.”

The term of the patent is 20 years from the date of priority with respect to all kinds of patents. It is mandatory for the patentee to pay a prescribed renewal fee ever year.

About This Author

Ms. S.L. Soujanya is a registered Patent agent with an academic background in Pharmaceutical sciences. She holds a Bachelor’s degree in Pharmacy from the Osmania University, Hyderabad and holds a Post Graduate Diploma in Intellectual Property Rights Law from NLSIU, Bangalore.

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