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Author - Venkata Raghavan

What is a patent?

A patent is a kind of ownership that is possessed by someone who has the sole rights to their goods or property. The Patent Law, an amendment of the 1970 Act was enforced on 20 April 1972. This act restricts the rights only to drugs, medicines, chemicals and food items.

People often confuse copyrights and patent rights, although the two are very different since unlike copyrights, patents do not deal with protecting ideas. And also unlike copyrights, a person cannot get any invention patented; it should suffice certain factors mostly, novelty, usefulness, and non-obviousness. Patent law centers around the concept of novelty and invention (or lack of obviousness). The right which they confer is to prevent others from using the invention or the same idea, for the duration of the patent. The special potentiality of a patent is that it may be used to prevent others from including any form of patented invention in their products and services. Thus, a patent poses serious difficulties for its competitors. This being the reason as to why patents are not freely available for all kinds of industrial improvements but only for what is judged to qualify as a patentable invention.

Patents can be registered nationally or internationally, but according to the World Trade Organization's (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, all the patents should be available in WTO member states for any invention.As per the TRIPS Agreement,  member countries should make patents available for any invention, without discrimination, subject to the tests of novelty, industrial applicability and inventiveness. It further states that the minimum patent protection should be for a duration of twenty years counted from the filing date.

What are the Patent Applications?

A Patent Application is simply a document that is required to be approved to get a patent for a particular invention. The first step towards securing a patent is filing a patent application in the Indian Patent Office. A set of forms has to be submitted to the office. Submission of forms can be online (Class 3 digital certificate will be required). Alternatively, true copies (hard copies) can also be submitted to the patent office for which 10% additional fees will be charged.

The most important factor in filing a patent application is preparation of patent specifications. Drafting of patent specification is a highly skilled job and should only be performed by persons, having both technical as well as patent law expertise.

Indian patent offices are located at Delhi, Kolkata, Mumbai and Chennai. Appropriate office should be selected by the applicant as per their office location.

Various aspects need to be kept in mind while filing an application. Few of them are:

• Cost of patent     
• What can be patented and what cannot be
• Different and best suited patent filing options     
• Process Timeline      
• Stage at which Patent should be applied     
• Applying for a patent before creating a prototype or not    
• Applying for a patent before publishing invention  

How to get a patent application filed in India?

Patent Registration is of two types namely provisional registration and complete registration. It is of no significance whether the invention is an idea or a product; the registration is the same for both in India. Provisional patent registration is intended for inventions that are incomplete; whereas, complete registration is intended for inventions that are fully completed.

The following is a detailed step by step guide on how to get a patent application filed.

Step 1: Check the Patentability: The first step is to make sure whether the invention is patentable or not. The invention should be a novelty and must be of some use to society. Given below is a list of patentable and non-patentable processes.

Processes that are ineligible for patent are:

• Naturally occurring phenomena
• Laws of nature
• Abstract ideas
• Business methods
• Atomic weapons
• Inventions used for illegal purposes
• Human organisms
• Tax strategies

Processes that may be patented include:

• Scientific theories, discoveries, or mathematical formulas
• Inventions which are not in existence at the time of filing for Patent.
• Aesthetic design creations, methods, principles, plans, or rules of games
• Plant or animal production processes
• Animal species
• Therapeutic or surgical methods of treating animals or humans
• Diagnostic methods

Step 2: Perform a patent search: This step is required to make sure that the invention is not already patented. It can be done through a Google patent portal in case you have no assistance but expert assistance is recommended for proper information search. It is a crucial step as it can save tons of work and time in case the invention is already patented.

Step 3: Gather and organize the following documents: The following documents are to be attached to the patent application.

• ID proof of the applicant
• Address proof of the applicant
• ID proof of the inventor
• Address proof of the inventor
• Supporting document that specifies the details pertaining to the patent applicant.
• A supporting document which would contain the following document:
  • Description of the invention
  • Abstract of the invention
  • Diagrams of the invention
  • Advantages of the invention
  • Utilities of the invention
  • Testing results of the invention
  • Internal diagram of the invention
• Current status of the invention (complete or to-be-completed)

Step 4: File the application for patent registration: This step involves the filing of the patent application along with the patent fees. After drafting the application, it should be filed to secure the patent date. 

In case of a provisional Patent, the completed application must be filed within a duration of 12 months. When an invention is new and the applicant is not sure as to what to get patented, provisional application should be filed. There is a pendency period of twelve months between provisional patent specification and complete patent specification. Once Provisional Patent Specification has been filed the inventor/applicant can legally use the tag “Patent Pending” or “Patent Applied”.

If the Applicant applies for a provisional specification and later realises that it is not commercially feasible or chooses not to get a patent, the provisional patent can be abandoned.

Every application must contain a list of forms, they include the following:

• Form 1: Application for grant of a patent
• Form 2: Provisional/Complete Application
• Form 3: Statement and undertaking regarding foreign applications under Section 8 (this is required only if there is a corresponding patent application filed in another country)
• Form 5: Declaration of inventorship - to be filed only with the complete application
• Form 26: This is the form of authorization of a patent agency, to be used only if using a patent agent
• Form 28: This is the form to be submitted by a startup or small entity when claiming the startup or small entity status

These forms are available on http://ipindia.nic.in/form-and-fees.htm. 

One can file online application for patent on the following link https://ipindiaonline.gov.in/epatentfiling/user/NewUserRegistration.aspx

Step 5: File for Request for Examination: One has to wait for a period of 18 months to get the invention examined after filing the patent application. One can file for RFE (Request for Examination) to get an early examination date. No patent office can give patent rights before a thorough examination, and thus the examiner checks the invention and creates a patent examination report.

Step 6: Checking the examination report: After the examination has been completed by the patent office, the examination report is forwarded to the Controller who verifies the report and makes sure that there are no errors. In case of any errors, the applicant can rectify them in the given duration.

Step 7: Grant of the patent: Once all the errors have been successfully removed, and the controller has approved it, then the applicant receives the Patent of the respective invention and their details are entered into the patent registry.

Step 8: Publication: The patent application is published in the Patent Journal. Before the publication, every application is kept a secret in India to avoid any speculation.

Step 9: Renewal: Patent in India is valid for a term of 20 years and the patent remains active in the register of the Indian Patent Office by paying renewal fees from time to time.