What are the Different Types of Patent Applications Filed in India?

Introduction

• An innovation patent is an exclusive right given by the government to the inventor to prevent others from using, producing, and selling the invention for a set amount of time. Additionally, a patent is allowed for enhancements to a prior invention. The inventor can file various types of patent applications to protect the invention.
• Modern terminology typically refers to the Patent as the right given to an inventor for his invention of any novel, practical, non-obvious procedure, machine, manufactured goods, or material composition. 
• To advance their cooperation in intellectual property rights (IPR), the Danish Patent and Trademark Office (DKPTO) and the Department for Promotion of Industry and Internal Trade (DPIIT) of India signed a Memorandum of Understanding (MOU) on September 26, 2020.

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What are the basic tests applicable for any invention to be patentable?

• First and foremost, the invention must be novel, which implies that it cannot already be in use. The Patent Law lists non-patentable subject matter in Sections 3 and 4 of the Patent Law.
• Second, the invention must be non-obvious, which means that it must significantly improve on the prior invention; a simple shift in technique will not grant the inventor the right to a patent.
• Thirdly, the invention must be beneficial in a bona fide manner, which requires that it not only be employed in lawful activities but also benefit society as a whole. All the basic tests apply to all the different types of patent applications (which will be discussed in detail further)

What are the different types of patent applications filed in India?

Seven types of patent applications can be filed in India. These are – 

1) Conventional Application-  Conventional Applications are the type of patent applications that are submitted to the Patent Office that claim a priority date based on applications that are substantially similar to or identical to those submitted in one or more of the convention countries.

To obtain convention status, an applicant must apply to the Indian Patent Office within 12 months of the date on which a similar application or the same was initially filed in the convention country.

2) Provisional Application-  Provisional Patent Application is the type of patent application that is used when an invention is still being tested and not finalized; a provisional application is a form of temporary Application that is submitted.

Indian Patent Office follows the ‘First to File’ system; early filing by the inventor prevents any other related inventions from becoming prior art to the inventor’s application. When an application is accompanied by a provisional specification, a complete specification should be filed within 12 months from the date of filing of the provisional application. Failure to do so leads to the abandoning of the application.

Provisional Application attracts various advantages to the inventor. Some of them are listed below-

• The applicant is given a year to develop the idea and assess its market viability thoroughly
• Aids in establishing specific rights of precedence over innovation
• The application gives the applicant the right to label their items as “patent pending.”
• The cost of preparing and submitting the Provisional Application is lower.
• The applicant has a 12-month window in which to submit international applications and assert priority.

3) Non-Provisional Application- A Non-Provisional or Regular Patent Application is a type of patent application that is submitted to the Patent Office without claiming any priority dates from applications made in convention countries or referring to any other applications already in the Patent Office’s processing queue.

A standard application is a commonly filed type of patent application by inventors. It must contain a detailed specification and all pertinent claims related to the invention. The application should provide an in-depth description of the invention and include the best-known method for implementing it, concluding with one or more claims that define the scope of the invention.

A complete specification can be submitted in two methods:

1. Direct Filing: The complete specification is submitted directly to the Indian Patent Office without an accompanying provisional specification.
2. Subsequent Filing: The complete specification is submitted after an initial provisional specification has been filed, claiming priority from the earlier provisional application.

The complete specification must include the following elements:

1. Title
2. Introduction to the invention
3. Technical field of the invention
4. Background information
5. Objectives of the invention
6. Summary of the invention
7. Brief description of any drawings
8. Detailed description of the invention
9. Claims
10. Abstract

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4) Patent of Addition – A Patent of Addition is a type of patent application in which an applicant feels that he or she has discovered an invention that is only a slight improvement over an earlier invention for which they have already applied or obtained a patent. If the new invention does not contain a significant number of inventive steps, the applicant may choose to pursue a patent of addition.

During the duration of the Primary Patent, there is no need to pay a separate renewal fee for the Patent of Addition, and both Patents expire simultaneously. The date on which the Patent Office receives the application for a Patent of Addition shall be used as the date of filing.

5) Divisional Application– It is that type of patent application when an applicant submits an application that includes claims for multiple inventions; the applicant may partition the patent application into two or more applications, as appropriate for each of the many inventions, at the applicant’s discretion or in response to an official objection.

Divisional Applications are those applications that have been split out from the main or parent applications. The priority date will be the same for all divisional applications as stated by the parent application (Ante-dating). The term of patent for a divisional application shall be twenty years from the date of filing of the main application

6) PCT International Application- A PCT application is a type of patent application governed by the PCT (Patent Cooperation Treaty). By submitting a single international patent application through the PCT, applicants can simultaneously request protection for their invention in 148 countries worldwide. There are three ways in which an Indian can file a PCT application- 

1. Submitting the application to the receiving office, i.e., the Indian Patent Office (IPO).

2. After receiving the overseas filing permit from the Indian Patent Office (IPO), applying directly to the International Bureau (IB) of the World Intellectual Property Organization (WIPO).

3. After six weeks and within 12 months of filing the application in India, the applicant may submit it to the International Bureau (IB) of the World Intellectual Property Organization (WIPO).

7) PCT National Phase Application – A PCT National Phase Application is a type of patent application in which an applicant must submit the national phase application in India within 31 months of the priority date or the international filing date, whichever is sooner, where an international application is formed and made in accordance with the PCT designating India.

For the National Phase Application, the title, description, drawings, abstract, and claims from the International Application under PCT will be considered the Complete Specification. All other formalities necessary for filing and processing a standard patent application will also apply to a National Phase Application.

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A comprehensive table outlining different types of patent applications, relevant sections, priority dates, and key conditions.

Application	Relevant Section	Priority Date	Important Condition
Conventional Application	S.133, S.135	Date of filing of the earliest convention country	Must file in India within 12 months from the date of the basic application. The patent term is 20 years from the filing date in India.
Provisional Application	S. 7, S. 9, S.10	Date of filing provisional specification	Must file a complete specification within 12 months.
Non-Provisional Application	S. 7, S. 9, S.10, S.11	Direct filing: Date of filing complete specification <br> Subsequent filing: Date of filing provisional specification	Enablement and disclosure of the best mode of working of the invention.
Patent of Addition	S.54, S.55	Date of filing main application	Granted only after the main patent is granted.
Divisional Application	S.16	Date of filing parent application
PCT – International Application	S. 39, S.7	Date of filing International application	Can enter various countries within 30/31 months from the PCT application filing date.
PCT – National Phase Application	S. 7(1A), S.10(4A), S.138	Date of filing International application	Must file in India within 31 months from the date of the International application.

Key Points for Filing a Patent Application

1. Non-Disclosure

• Keep Your Innovation Secret: Before filing, maintain confidentiality of your invention. Public disclosure can hinder obtaining protection. Use non-disclosure agreements (NDAs) when discussing with external parties like investors or developers.
• Post-Filing Disclosure: Once the application is filed, you can freely disclose details without affecting the patentability.

2. Assessing Novelty and Inventive Steps

• Innovation Requirement: The invention must be novel. Any prior public disclosure before the filing date can be used against the application. This includes your own disclosures, highlighting the need for pre-filing confidentiality.
• Non-Obviousness: The invention must not be obvious to someone skilled in the relevant field. It should provide a technical solution to a technical problem.

3. Pre-Filing Searches

• Keyword Searches: Use free tools like Espacenet, Google Patents, or the US Patent and Trademark Office website to check if the invention is already known. While not exhaustive, these searches can guide you on which features to protect.
• Professional Searches: Consider professional, detailed IP searches for a more thorough assessment.

4. Drafting

• Patent Application Preparation: Draft a comprehensive application including a full description, technical drawings, and a set of claims defining the protection sought. The description should enable a skilled person to understand the invention and its novel features.

5. Priority Date

• Territorial Nature of Patents: File a patent application in each jurisdiction where protection is desired. You have one year from the priority date to file in other countries, maintaining the priority period.

6. Subsequent Filings

• Direct Applications: File directly in each jurisdiction of interest before the priority period expires, maintaining the initial priority date.
• International Application: File a PCT application through the Patent Cooperation Treaty to extend the priority date by 18 months, allowing more time to decide on future filings. Note that the patent term begins on the filing date, not the priority date. Applications are published 18 months after the priority date.

7. Investigation and Search

• Patent Office Search: Each jurisdiction’s patent office will search for documents to assess novelty and inventive steps. The examination process varies by jurisdiction, making it challenging to achieve uniform protection globally. A patent can be granted and enforced once it meets the necessary criteria.

8. Approximate Fees for Filing a Patent Application in India

1. Filing Fees:

• Application for Patent Grant (Form 1):
  • Natural person/startup: ₹1,600
  • Small entity: ₹4,000
  • Others: ₹8,000

2. Provisional/Complete Specification (Form 2):

• Same as filing fees for Form 1

3. Request for Early Publication (Form 9):

• Natural person/startup: ₹2,500
• Small entity: ₹6,250
• Others: ₹12,500

4. Request for Examination (Form 18):

• Natural person/startup: ₹4,000
• Small entity: ₹10,000
• Others: ₹20,000

5. Request for Expedited Examination (Form 18A):

• Natural person/startup: ₹8,000
• Small entity: ₹25,000
• Others: ₹60,000

6. Renewal Fees (Annually):

• For 3rd to 6th year: ₹800 (natural person), ₹2,000 (small entity), ₹4,000 (others) per year
• For 7th to 10th year: ₹2,400 (natural person), ₹6,000 (small entity), ₹12,000 (others) per year
• For 11th to 15th year: ₹4,800 (natural person), ₹12,000 (small entity), ₹24,000 (others) per year
• For 16th to 20th year: ₹8,000 (natural person), ₹20,000 (small entity), ₹40,000 (others) per year

7. Post-Grant Opposition (Form 7):

• Natural person/startup: ₹2,400
• Small entity: ₹6,000
• Others: ₹12,000

8. Patent Attorney Fees:

• Drafting a patent application: ₹50,000 to ₹1,00,000, depending on complexity.
• Filing and prosecution: Additional ₹50,000 to ₹1,00,000.

Fee Type	Natural Person/Startup	Small Entity	Others
Application for Patent Grant (Form 1)	₹1,600	₹4,000	₹8,000
Provisional/Complete Specification (Form 2)	₹1,600	₹4,000	₹8,000
Request for Early Publication (Form 9)	₹2,500	₹6,250	₹12,500
Request for Examination (Form 18)	₹4,000	₹10,000	₹20,000
Request for Expedited Examination (Form 18A)	₹8,000	₹25,000	₹60,000
Renewal Fees (Annually)
3rd to 6th year	₹800	₹2,000	₹4,000
7th to 10th year	₹2,400	₹6,000	₹12,000
11th to 15th year	₹4,800	₹12,000	₹24,000
16th to 20th year	₹8,000	₹20,000	₹40,000
Post-Grant Opposition (Form 7)	₹2,400	₹6,000	₹12,000
Patent Attorney Fees	₹50,000 to ₹1,00,000 (Drafting)	₹50,000 to ₹1,00,000 (Filing & Prosecution)

The costs can vary depending on the specifics of the patent application and additional services required. These fees are subject to change, and it is advisable to consult with a patent attorney for detailed and updated information.

Conclusion

There are various ways to safeguard your brand-new, original idea in India from any infringement by a third party. This patent protection is accessible not just in India but also in other nations throughout the world. The inventor just has to file the patent application out of the different types of patent applications that are available. 

Therefore, anyone submitting a patent application in India must be aware of the fundamental prerequisites for submitting different types of patent applications in India. The patent applicant should always be mindful of the many Indian patent applications and appropriately submit their Application to the Indian Patent Office.

For the purpose of carrying out the process of applying for various forms of patent application for registration in India, the applicant should always seek the advice of a business lawyer.

Frequently Asked Questions

Q1. What is a Patent?

Ans1. A Patent is a government-granted right that prevents others from making, using, selling, or importing your invention for a set period.

Q2. What are the requirements for a patentable invention?

Ans2. An invention must be:

• Novel (new and not already in use)
• Non-obvious (significantly improve on existing inventions)
• Industrially Applicable (useful in industry)

Q3. What are some non-patentable inventions in India?

Ans3. Sections 3 and 4 of the Patent Law list non-patentable inventions, such as discoveries, scientific principles, and frivolous inventions.

Q4. What are the different types of Patent Applications in India?

Ans4. There are seven main types:

1. Convention Application: Claims priority from a similar application filed in another country.
2. Provisional Application: For inventions under development, providing a filing date and time to develop the idea further.
3. Non-Provisional Application: A complete application with detailed specifications and claims for the invention.
4. Patent of Addition: For minor improvements on an existing patented invention.
5. Divisional Application: Splitting a multi-invention application into separate applications.
6. PCT International Application: Seeks patent protection in multiple countries through the PCT.
7. PCT National Phase Application: Entering the national patent phase in India after a PCT application.

Q5. What are the advantages of a Provisional Application?

Ans5. Advantages include:

• Time to develop the invention further (1 year)
• Establish priority over the invention
• Label inventions as “patent pending”
• Lower filing cost
• Time to file international applications claiming priority

Q6. What is a Non-Provisional Application?

Ans6. A complete application with all details and claims for the invention, typically used for most patents.

Q7. When would you use a Patent of Addition?

Ans8. You might use a Patent of Addition for a minor improvement on an existing patented invention you already own.

Q8. What is a Divisional Application?

Ans8. If your initial application covers multiple inventions, you can divide it into separate Divisional Applications.

Q9. How can I file a PCT International Application?

Ans9. You can file a PCT application through the Indian Patent Office, directly to the International Bureau, or after obtaining a filing permit from India.

Q10. What is the deadline for a PCT National Phase Application in India?

Ans10. You must submit the National Phase Application within 31 months of the priority date or international filing date (whichever is earlier).