A Comprehensive Guide on Patent in India

by  Adv. Abhijeet Sawant  

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Empowering Inventors: Secure Your Invention with a Patent in India

Intellectual property (IP) rights encompass legal protections granted to creators for their original works, inventions, or designs. These rights ensure creators can benefit from their creations for a specific period without unauthorised use by others. Patents, trademarks, copyrights, and geographical indications are some prominent examples of IP.

What is a Patent?

Derived from the Latin word “patere” meaning “to lay open,” a patent grants an exclusive right to the inventor for a limited period. This right allows the inventor to control the making, using, selling, or importing of their invention. Violating these exclusive rights is known as patent infringement.

The Patents Act, 1970

India’s primary patent law is the Patents Act, 1970. This act aims to incentivise innovation by offering exclusive rights to inventors.

A Historical Perspective

  • Early Legislation (1856-1888): The first patent law in India, Act VI of 1856, was later repealed due to a lack of royal approval. Subsequent acts, like Act XV of 1859 and the combined Patents and Designs Protection Act of 1872 (amended in 1883 and 1888), laid the groundwork for patent protection.
  • The Indian Patents and Designs Act, 1911: This act consolidated previous legislation.
  • The Patents Act, 1970 (amended 2005): This act remains the current framework. Key amendments include:
    • Extending product patents to all technological fields (food, drugs, chemicals, microorganisms).
    • Abolishing Exclusive Marketing Rights (EMRs).
    • Introducing provisions for compulsory licensing and pre-grant/post-grant opposition.

People Also Read: Dive into the distinctions between Patent, Trademark, and Copyright

Conditions for Patentability

Not all inventions qualify for patents. The Patents Act, 1970 (Sections 3 & 4) outlines exceptions for non-patentable inventions. An invention must meet three main criteria for patentability:

  1. Novelty: The invention must be new and not previously disclosed.
  2. Industrial Applicability: The invention must have a practical use in industry.
  3. Non-obviousness: The invention must involve a significant inventive step compared to existing knowledge.

What Can (and Can’t) Be Patented in India?

Understanding patentability is crucial for inventors seeking to protect their creations. Here’s a breakdown of what qualifies for a patent in India:

Patentable Inventions:

  • Novelty: The invention must be entirely new and not previously disclosed publicly in any form. Think of it as being the first of its kind.
  • Inventive Step: It shouldn’t be an obvious improvement on existing technology. The invention should demonstrate a non-obvious inventive step that wasn’t readily apparent before.
  • Industrial Applicability: The invention must have a practical use and be capable of being produced or used in an industry. It should offer a tangible benefit and not be purely theoretical.

Examples of Non-Patentable Subject Matter:

These discoveries and creations, while valuable, are excluded from patent protection under the Indian Patents Act, 1970 (Sections 3 and 5):

  • Scientific Discoveries and Laws of Nature: Concepts like Isaac Newton’s law of gravity or Albert Einstein’s theory of relativity cannot be patented. These are fundamental principles, not inventions.
  • Methods of Agriculture and Horticulture: Techniques used in farming and plant cultivation aren’t patentable.
  • Medical Treatments: Processes for diagnosing, treating, or preventing diseases in humans, animals, or plants are not eligible.
  • Atomic Energy: Processes or inventions related to atomic energy are excluded for safety and security reasons.
  • Mere Discoveries: Simply discovering something that already exists, like a new plant species, isn’t patentable.

If you want to learn more about the overall process and other related topics, check out our comprehensive guide on Intellectual Property Rights (IPR) in India

Who Can Apply for a Patent?

Section 6 of the Act specifies those eligible to apply for a patent:

  • The true and first inventor
  • The assignee (someone to whom the inventor assigns the right to apply)
  • The legal representative of a deceased inventor who was entitled to apply before their death

Types of Patents in India

Patents safeguard inventors’ creations and discoveries that are novel and non-obvious. Three main types of patents offer protection for specific inventions, and sometimes, an invention may qualify for multiple types of patents.

  1. Utility Patents:
    • This is the most common patent type, covering new and useful processes, machines, compositions of matter, and manufacturers.
    • It can also protect significant improvements to existing inventions in these categories.
    • Indian inventors seeking utility patent protection can apply in countries like Australia, UAE, China, Germany, France, and many European Union nations.
  2. Design Patents:
    • These patents protect the “surface ornamentation” of an object, including its shape or configuration.
    • Design patents are only granted when the design is inseparable from the object itself, essentially protecting only the object’s appearance.
    • A utility patent application is also necessary to safeguard the functional or structural features of an object.
  3. Plant Patents (Not Available in India):
    • These patents protect new and distinctive plant varieties.
    • To qualify, the plant must not be:
      • A tuber-propagated plant (e.g., Irish potato)
      • Found in an uncultivated state
    • It must also be capable of asexual reproduction (grafting or cutting)
    • As of now, India does not provide plant patents, but inventors can seek protection in Australia, the USA, and several European countries.

Types of Patent Applications under the Indian Patents Act, 1970

The Patents Act outlines various patent application options:

  1. Provisional Application:
    • This is a preliminary application filed with the patent office to establish priority. It’s ideal when inventors need more time to refine their inventions.
    • The Indian Patent Office follows a “first-to-file” system, so early filing prevents other related inventions from becoming prior art (potentially hindering your application).
    • A complete specification must be filed within 12 months of the provisional application, or the application will be cancelled.
  2. Ordinary or Non-Provisional Application:
    • If there’s no priority claim, a non-provisional application with a complete specification detailing the invention is filed directly with the patent office.
  3. Convention Application:
    • This application claims a priority date based on a similar application filed in a convention country (a country that adheres to the Paris Convention for the Protection of Industrial Property).
    • To gain convention status, the application must be filed in India within 12 months from the initial filing date in the convention country.
  4. PCT International Application:
    • This streamlined process allows inventors to seek patent protection in up to 142 countries simultaneously through the Patent Cooperation Treaty (PCT).
    • Filing a single international patent application suffices to initiate the process.
  5. PCT National Phase Application:
    • This application is filed by the inventor in each desired country for protection within 30 or 31 months from the priority date or international filing date (whichever is earlier).
  6. Application for Patent of Addition:
    • This application is used when an inventor develops improvements or modifications to an invention already described in a pending or granted patent application (main application).
    • A patent of addition can only be granted after the main patent is granted, and there’s no separate renewal fee during the main patent’s term.
  7. Divisional Application:
    • If an application claims multiple inventions, the applicant can divide it and file separate applications for each invention. These are known as divisional applications.
    • They share the priority date of the parent application and have a 20-year term from the main application’s filing date.

Have a groundbreaking idea? Don't let it remain untapped! Schedule a consultation with our patent experts today. We'll guide you through the application process and ensure your invention receives the protection it deserves.

Essential Documents for Your Patent Application

Obtaining a patent in India requires a specific set of documents. Here’s a breakdown of what you’ll need:

1. Patent Grant Application (Form 1): This is your official request to the Indian Patent Office for a patent. It includes details like:

  • Applicant information (name, address, nationality)
  • Invention title
  • Technical field
  • Detailed description of the invention
  • Drawings (if necessary)
  • An abstract summarizing the invention

2. Provisional or Complete Specification: Choose one of these:

  • Provisional Specification: A preliminary document outlining your invention. It secures a priority date but requires a complete specification later.
  • Complete Specification: This comprehensive document provides all the technical details and claims regarding your invention. Aim for a precise explanation with supporting evidence.

3. Statement and Pledge: This declaration affirms your right to apply. You’ll state your connection to the invention and confirm the accuracy of all information.

4. Declaration of Inventorship: Accurately identify all inventors who significantly contributed to the creation.

5. Authorization for Representation (Power of Attorney): (Optional) This document allows a patent agent or attorney to represent you during the application process. Choose a qualified representative familiar with Indian patent law.

Tip: When submitting your application, remember to pay the required fee. You can file electronically or in person at the patent office.

Costs Involved in Patent Filing in India

Official Fees

  • Application Filing Fee: INR 1,600 (individual), INR 4,000 (small entity), INR 8,000 (large entity)
  • Request for Examination: INR 4,000 (individual), INR 10,000 (small entity), INR 20,000 (large entity)
  • Renewal Fees: Vary based on the age of the patent, starting from INR 800/year (individual) to INR 20,000/year (large entity)

Additional Costs

  • Patent Agent Fees: Professional fees for drafting and applying.
  • Search Fees: Costs associated with conducting a patent search.
  • Legal Fees: Costs for legal representation in case of disputes or litigation.

Navigating the Patent Application Process

The Indian Patents Act governs the filing and management of patents. Here’s a breakdown of the key steps involved:

Who Can Apply:

  • The inventor themself
  • Their assignee (someone they assign the patent rights to)
  • A legal representative (if the inventor is deceased)

Where to Apply:

  • Head office of the Indian Patent Office
  • Branch office depending on your jurisdiction (if not an Indian citizen, apply in your country of residence)

DIY or Professional Help:

You can file yourself, but consider seeking help from a registered patent agent for a smoother process. Costs include:

  • Government fees for forms and renewals
  • Agent fees (optional, but recommended)

The Patent Application Process:

  1. Invention Disclosure: Describe your invention to a professional (patent agent or attorney) and sign a non-disclosure agreement (NDA) to protect your confidentiality. Disclose everything in detail.
  2. Patentability Search: A professional conducts thorough research in relevant databases to assess your invention’s novelty and determine if it meets patentability criteria. This step helps you decide if proceeding is worthwhile.
  3. Filing an Application: After the patentability search, you can decide to file a patent application. This stage involves “patent drafting,” where a detailed description of your invention is written.
  4. Patent Drafting: This crucial step requires technical and legal expertise. It’s highly recommended to seek professional help to ensure your application is drafted accurately and effectively.
  5. Filing the Patent Application: Once the draft is reviewed and finalized, submit the application with the appropriate forms and fees (ranging from ₹1,600 to ₹8,000 depending on the application type). If you don’t request early publication, the application will be published after 18 months.
  6. Request for Examination: Within 48 hours of filing, request the patent office to examine your application. Examination fees range from ₹4,000 to ₹20,000 based on your applicant type.
  7. Responding to Objections (if any): The patent office will examine your application. If they find any prior art or have concerns, you’ll have the opportunity to respond and address their objections.
  8. Grant of Patent: If your application meets all requirements, it will be granted and published in a patent journal.
  9. Patent Renewal: Patents are valid for 20 years. You can renew your patent by paying a fee upon its expiration.

Why Patenting Your Invention Benefits Your Business

A patent offers a powerful tool for businesses looking to protect and leverage their innovative creations. Here’s a breakdown of the key advantages:

1. Exclusive Rights: A patent grants you exclusive ownership of your invention for 20 years from filing. This allows you to produce, use, and sell it without competition.

2. Market Differentiation: A patented product or process sets you apart from competitors, acting as a unique selling proposition. It showcases your innovation and attracts customers seeking solutions.

3. Monopoly Power: A patent gives you control over how your invention is used in the market. This empowers you to set pricing strategies and negotiate favourable licensing deals.

4. Revenue Generation: Patents can be valuable assets. You can generate income by licensing your technology to other companies, forming partnerships, or even selling the patent outright.

5. Investor Confidence: Patents demonstrate your commitment to innovation and safeguard your market position, boosting investor and stakeholder confidence in your business.

6. Legal Protection: A patent establishes a legal framework for protecting your intellectual property. In case of infringement, you can take legal action to halt unauthorized use and seek compensation.

7. Incentive for Innovation: Patents incentivize businesses and inventors to invest in research and development (R&D). Knowing their creations will be protected motivates them to push the boundaries of innovation.

8. Strategic Advantage: Patents can be used strategically to create barriers to entry in your market. They make it harder for competitors to imitate your products or processes.

9. Global Protection: In today’s globalized world, patents offer protection beyond borders. Strategic filing and collaboration agreements can secure your intellectual property rights in multiple countries.

10. Enhanced Business Valuation: A portfolio of granted patents increases the value of your business. It demonstrates potential future revenue streams and a strong foundation for sustained success.

11. Technology Transfer: Patents facilitate technology transfer by enabling businesses to share or license their inventions with others. This opens doors for collaboration and beneficial partnerships.

Challenges During Patent Application

  • Stringent Eligibility Criteria: Securing a patent requires meeting strict criteria. Your invention must be novel, involve an inventive step (not obvious), and have a practical application. Fulfilling these standards can be difficult for some inventions.
  • Lengthy Approval Process: The patent approval process in India can be time-consuming. Delays during examination and grant stages can impact the overall time it takes to secure a patent.
  • Documentation and Technicalities: Thorough and accurate documentation that meets all standards is essential for patent applications. Insufficient documentation or non-compliance can lead to rejection.
  • Competing Claims and Oppositions: Third parties might oppose your patent grant while it’s being processed. Resolving these challenges can be legally complex and lead to delays or denial of the patent.
  • High Costs: The costs associated with filing and maintaining a patent in India can be significant, posing a hurdle for businesses or startups navigating the application process.
  • Lack of Awareness: Many businesses lack awareness about the importance of patent protection and the nuances of the application procedure. This can lead to missed opportunities to safeguard their intellectual property.
  • Enforcement Challenges: Enforcing a granted patent can be challenging due to case backlogs within the Indian legal system and lengthy court proceedings.
  • Limited International Recognition: While inventions are protected within India’s patent system, international recognition may require applications in other jurisdictions, creating additional hurdles.
  • Complex Patent Drafting: Crafting a well-written patent application that effectively describes your invention while meeting legal requirements can be challenging. Consulting a patent attorney is highly recommended for a favourable outcome.
  • Rapid Technological Changes: In fast-paced industries, technological advancements may outpace the patent approval process, potentially rendering patents outdated before they are even granted or enforced.

Opposition to Patent Grant

The Patents Act (Section 25) allows for two types of opposition:

  1. Pre-grant Opposition:
    • This occurs before a patent is granted (Section 25(1)). Any person can file a written objection against it.
    • The objection must be filed after the application’s publication but before the patent grant.
    • This allows others to challenge the invention’s patentability based on various grounds, such as lack of novelty, non-obviousness, or insufficient inventive steps.
  1. Post-grant Opposition (Section 25(2)):
    • These objections are filed after the patent is granted.
    • Anyone can raise objections within one year of the grant notice publication by submitting a notice of opposition to the Controller.
    • The notice must disclose details such as the opponent’s interest, grounds for opposition, and desired relief (e.g., patent revocation).

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Grounds for Opposing a Patent Grant in India

The Patents Act, as amended in 2005, outlines various grounds for filing a pre-grant opposition (Section 25(1)(a) to (k)):

  • Improper Acquisition of Invention: This applies if the applicant is not the true inventor or obtained the invention through wrongful means.
  • Prior Disclosure: The invention was already publicly disclosed through publications or another party’s initial filing in India.
  • Obviousness and Lack of Inventive Step: The invention lacks novelty or doesn’t involve a significant inventive step compared to existing knowledge.
  • Non-Patentable Subject Matter: The invention falls under categories excluded from patent protection, such as scientific principles or discoveries.
  • Insufficient Description: The application lacks a clear and complete description of the invention.
  • Misinformation: The applicant withheld crucial information or provided false details regarding the invention or biological material source.
  • Delayed Convention Application: The patent application in India wasn’t filed within the 12-month window following the initial filing in a convention country.
  • Traditional Knowledge Anticipation: The invention is anticipated by traditional knowledge held by any community anywhere globally.

Similar grounds exist for post-grant opposition (Section 25(2)) filed after the patent is granted. Opponents must file a notice of opposition within one year of the grant notice publication, specifying the grounds for objection and the desired outcome (e.g., patent revocation).

Understanding Patent Infringement

Patent infringement occurs when someone violates the exclusive rights granted to a patent holder. These rights encompass the power to control the making, using, selling, or importing of the patented invention. Common infringing activities include unauthorized production, sale, or offer for sale of the patented subject matter. There are two main categories of infringement:

  • Direct Infringement: This occurs when a product substantially similar to the patented invention is commercially used, sold, or marketed without the patent holder’s permission.
  • Indirect Infringement: This involves unintentional or deceitful infringement, where someone contributes to the infringement without directly committing it.

Remedies for Patent Infringement

Section 108 of the Patents Act empowers courts to grant various reliefs in infringement suits. These may include:

  • Injunction: The court can order the infringing party to cease the infringing activities.
  • Damages or Account of Profits: The patent holder can choose to recover either the financial losses caused by the infringement or the profits earned by the infringer through their infringing activities.
  • Confiscation and Destruction of Infringing Goods: The court may order the seizure, forfeiture, or destruction of infringing goods and materials used to create them.

Exceptions and Limitations to Patent Rights in India

  • Compulsory Licensing: Under specific conditions outlined in Sections 84-92 of the Act, the government may authorise a third party to manufacture, use, or sell a patented product or process without the patent holder’s consent.
  • Research and Development Exemption: Section 47(3) clarifies that using a patented invention for research, scientific experimentation, or teaching purposes doesn’t constitute infringement.
  • Regulatory and Private Use Exemptions: Section 107A of the amended Act (also known as the “bolar provision”) allows specific actions without infringing a patent. These actions must be solely related to developing and submitting information required for regulatory approvals (e.g., drug manufacturing). This provision facilitates the timely availability of generic drugs after patent expiry.
  • Foreign Vessels, Aircraft, and Land Vehicles: Section 49 protects patent rights by allowing the use of a patented invention on foreign vessels, aircraft, or land vehicles entering India for a short period, as long as the use is exclusively for their needs.

Landmark Judgments in Indian Patent Law

  1. Novartis AG vs Union of India (2013): This case involved a patent application filed by Novartis, a Swiss pharmaceutical company, for an anti-cancer drug called Glivec (imatinib mesylate). Novartis sought a patent for the new use of an existing compound (known as “evergreening”). The Supreme Court of India rejected Novartis’s application, holding that the new use of a known compound did not involve an inventive step and, therefore, wasn’t patentable. This judgment had a significant impact by raising the bar for patentability in India, particularly for evergreening practices by pharmaceutical companies.
  2. Bayer Corporation vs Union of India (2009): This case involved a patent application filed by Bayer Corporation for a medicine called Nexavar (sorafenib tosylate) used for treating liver and kidney cancer. Similar to the Novartis case, Bayer claimed a patent for the new use of an existing compound. The Supreme Court, following its precedent in the Novartis case, denied Bayer’s patent application. This judgment further solidified the principle that mere new use of a known substance wouldn’t qualify for patent protection in India.

Ensure your invention receives the legal safeguards it needs to thrive. Contact us to discuss your specific needs and discover how our streamlined patent application service can help you achieve your goals.

Conclusion

In conclusion, understanding patent law empowers inventors and fosters a thriving innovation ecosystem in India. By seeking guidance from a qualified IP lawyer, you can navigate the intricacies of the patent system and turn your innovative ideas into successful realities. The legal landscape surrounding patents can be complex. To ensure you are maximizing your invention’s protection and minimizing risks, consult with a qualified and experienced intellectual property lawyer.

Frequently Asked Questions about Patents in India 

Q1. What are the different types of patents available in India?

Ans1. India offers three main types of patents, as defined in the Patents Act, 1970 (as amended):

  • Utility Patents (Section 2(1)(m)): Protect new and useful processes, machines, compositions of matter, and manufacturers. These are the most common type.
  • Design Patents (Section 2(1)(d)) Safeguard an object’s ornamental design, such as its shape or configuration.
  • Plant Patents (Not Available in India): Currently unavailable, these patents protect new and distinct varieties of plants (excluded under Section 5).

Q2. How do I apply for a patent in India?

Ans2. The process involves several steps, outlined in the Patents Act and governed by the Indian Patent Office:

  1. Filing: Submit a patent application with the Indian Patent Office (Section 6).
  2. Examination: Request an examination of your application within 48 months from the priority date (Section 11(1)).
  3. Response to Examination Report: Address any objections raised by the office within the allotted time (Section 13).
  4. Grant and Notification: Upon successful resolution of objections, the patent is granted and published in the Patent Office Journal (Section 44).

Q3. What are the grounds for opposing a patent grant in India?

Ans3. Pre-grant and post-grant opposition can occur based on various reasons outlined in the Patents Act:

  • Prior disclosure (Section 25(1)(a)): The invention was already publicly disclosed.
  • Lack of novelty or inventive step (Section 25(1)(d)): The invention is obvious or lacks an inventive step compared to existing knowledge.
  • Non-patentable subject matter (Section 3): The invention falls under categories excluded from patent protection, such as scientific principles or discoveries.
  • Insufficient description (Section 10(1)): The application lacks a clear and complete description of the invention.
  • Misinformation by the applicant (Section 24): The applicant withheld crucial information or provided false details.

Q4. What happens if someone infringes on my patent?

Ans4. Patent infringement is the violation of your exclusive rights as a patent holder, as defined in Section 2(1)(m) of the Patents Act. This could involve unauthorised production, sale, or use of your invention. You can seek remedies like injunctions, damages, or confiscation of infringing goods through the courts (Section 108).

Q5. Are there any exceptions to patent rights in India?

Ans5. Yes, some exceptions exist within the Patents Act:

  • Compulsory Licensing (Sections 84-92): Under specific conditions, the government may authorise a third party to use your patented invention without your permission.
  • Research and Development Exemption (Section 47(3)): Using a patented invention for research or teaching purposes generally doesn’t infringe on your rights.
  • Regulatory Approvals (Section 107A): Certain actions related to obtaining regulatory approvals for products (e.g., generic drugs) may be exempt from infringement.

Q6. Can I get a patent for a new use of an existing substance?

Ans6. The patentability of new uses depends on the inventive step involved. Landmark judgments like Novartis vs Union of India (2013) have set a high bar (Section 2(1)(g)), making it difficult to obtain patents for minor modifications or new uses of known compounds.

Q7. How much does it cost to get a patent in India?

Ans7. The cost of obtaining a patent varies depending on factors like the complexity of the invention and the number of claims made in the application. Consulting a patent attorney can provide a more accurate estimate for your specific case.

Q8. How long does a patent last in India?

Ans8. A patent granted in India is valid for 20 years from the date of filing the application (Section 52).

Q9. What are the benefits of having a patent in India?

Ans9. A patent grants you exclusive rights to your invention, allowing you to control its production, use, and sale (Section 2(1)(m)). This can provide a competitive advantage, attract investment, and generate revenue through licensing.

Q10. Should I consult a lawyer when dealing with patents in India?

Ans10. Absolutely! Patent law can be complex.

Time is of the essence when protecting your intellectual property. Start your patent application today with our team, and gain a competitive edge in the marketplace.

Adv. Abhijeet Sawant

Adv. Abhijeet Sawant

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Abhijeet Sawant is an advocate who has been offering ethical and professional legal consultancy and advisory services with a focus on achieving desired outcomes. With 7 years of independent practice, He possesses significant expertise in handling legal cases. Abhijeet completed his degree from the University of Mumbai and has been practising law independently ever since.

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