Patent Application in India : A Brief Note

Patent Application in India : A Brief Note
20 July 2020

Patent Application in India : A Brief Note

A patent is granted as an absolute right by the Government for an invention, for a limited period of time in consideration of the disclosure of the invention by an applicant. A patentee enjoys absolute right to avert the third party from the unauthorized act of using, making, offering for sale, importing, or selling the patented product or procedure within the country during the term of the patent. A patented invention becomes free for public use after expiry of the term of the patent or when the patent ceases to have an effect, by non-payment of any renewal fee.

A patent is an absolute right granted to a person by the Indian Patent Office for an invention. Application for patent shall be filed as per the place of residence of the applicant or place of origination of invention or address of service in India(Foreign applicants) and the four offices are Mumbai, Delhi, Chennai, Kolkata.

Persons who can apply for patent registration are as follows:

  1. Inventor
  2. Inventor‘s assignee
  3. The legal representative of deceased inventor or his or her assignee

Section 3 of the Patent Act, 1970 mentions various types of the invention that will not qualify for a patent even if they satisfy the requirement of section 2 (1) (j) of the act namely.

  1. Any invention which is against the natural law
  2. Any invention which produces harmful effect to plant, animal or human life
  3. Any discovery related to abstract theory and scientific principle
  4. A technique of agriculture
  5. Any method for the surgical, medicinal or other care of human beings
  6. Presentation of information
  7. The topography of integrated circuits
Types of Patent Application

The application for patent can be of following types which are as follows :

  1. Ordinary application: Ordinary application is also called a non-provisional application. This application comprises the claims and the full specification. It is submitted in the patent office without any reference to other applications. In this patent application, the name and address of the first and true inventor must be provided.
  2. Convention Application: As per the act, convention application is defined as the application filed by the applicant in one or more convention countries. After filing the application in a convention country the applicant again files the same application at the patent office of India within 12 months.
  3. PCT Application: PCT application is also known as an international application. It was introduced in the year 1970. The main object of this application is to provide safety to the inventor for his discovery or idea in the world. In PCT applications, there are 148 countries. Instead of filing several regional or national applications the applicant can file a PCT application and protect his invention in these 148 countries.
  4. Divisional Application: This application is used when the applicant claims more than one invention and the law does not permit multiple patents in one invention. The applicant sends a request application to the patent office before the grant of the patent and divides the application into two parts.
  5. Patent of Addition: The application is filed by the applicant in the IPO if any modification or improvement is made to the invention. The time period is the same for granting the patent and it is not extended.
Documents for a patent application in India

The documents required for a patent application in India are as follows:

  1. Application for grant of a patent -Form 1
  2. Provisional or complete specification. If the provisional specification is filed, it must be followed by the complete specification within 12 months -Form 2
  3. Statement and undertaking for the corresponding foreign patent applications(if applicable)- Form 3
  4. Declaration of inventorship -to be filed with complete specification/convention application /PCT applications – Form 5
  5. A power of attorney (if filed through Patent Agent) – Form-26
  6. Priority document- convention application/PCT National Phase Application.
  7. Patent statutory fees – As per the first schedule (this is based on the nature of filing/nature or entity/sheets of specification)

After the receipt of the application, initial processing is carried out followed by scrutiny, and then after expiry of 18 months from date of filing or priority the publication of patent is done in the Official e-Journal. After 6 months from the date of publication, the patent is granted.

Types of Patent Specification

There are two types of specifications which are as follows:

  1. Provisional Specification: A Provisional Specification is a rough draft or skeleton of the Complete Specification and it includes the following:
    1. Title: It is a phrase or a word indicating the content of the invention
    2. Description of the invention: It is an elaborate and complete description of the invention
    3. Field of invention: It is the subject matter to which the invention relates.
    4. Background of the invention: The background identifies the key features of the invention that were lacking in the prior art.
    5. The object of the invention: It is the necessity of the invention.
    6. Summary of the invention: It is the distinguishing novel features of the invention for which protection is desired.
  2. Complete specification: It is a very important document in a patent application for the grant of a patent, the applicant must submit it within 12 months from the date of filing of provisional application and it includes the following :
    1. Title: It is a phrase or a word indicating the content of the invention
    2. Description of the invention: It is an elaborate and complete description of the invention
    3. Field of invention: It is the subject matter to which the invention relates.
    4. Background of the invention: The background identifies the key features of the invention that were lacking in the prior art.
    5. Use of Invention: Its the areas of application and preferable use of the invention.
    6. Background of the invention: The background identifies the key features of the invention that were lacking in the prior art.
    7. The object of the invention: It is the necessity of the invention.
    8. Summary of the invention: It is the distinguishing novel features of the invention for which protection is desired.
    9. Abstract: It's the short paragraph describing the invention.
    10. Drawings: Its written description might be supplemented with clearly labeled drawings
    11. Best Method: It describes the best mode of carrying out the invention.
    12. Claims: It defines what is claimed by the invention and thus what is sought to be protected.
Drafting of Patent Specification

The steps for drafting a Patent Specification are as follows:

  1. Document or Information needed from inventor, invention disclosure form which should include all information.
  2. Prepare a strategy for drafting and figure out the relevant method of drafting such problem-solution, Could-would, Teaching suggestion motivation, etc.
  3. Confirm your understanding with the inventor.
  4. Prepare claims of the specification and confirm the scope and technical disclosure with inventors.
  5. Draft the description, abstract, drawings of the specification.
  6. Share the full petition with the inventor to confirm.
  7. File a patent application based on the drafted patent specification.