A Brief Guide to Patent Protection in India

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Date: 20 Mar 2023

A Brief Guide to Patent Protection in India

As suggested by the name, patent protection refers to the protection of an innovation, idea or invention. To protect these aspects in India, a patent can be filed online through e-filing or manual submission of application and related documents in the relevant Patent Office.

In India, patents will be granted to applicants for a 20-year period, beginning from the date when the applicant filed the application for the patent. Renewal fees should be paid only after the grant of the patent. It may be paid on an annual basis for the complete term of the patent. One can get patent services online.

Nature of Patent Protection

A patent is a techno-legal document which is granted by the government based on national rules and provides the creator or inventor of inventions the sole rights to sell, make and use the creation for a specified period of time. The law of Patents is a part of Intellectual Property Rights. It protects the interests and rights of the creators/innovators of their inventions.

The Patents Act 1970 of India came into force in 1972 and was further amended in 2005. Patent offices in India have their own territorial jurisdiction for accepting applications for patents and are empowered to deal with them as per sections of the Patents Act 1970.

Rights As Per the Law

The Patents Act protects inventions related to both processes and products. As regards patents for processes, the inventor or creator gains an exclusive right to prevent unauthorised persons from the use of the process. Patent laws also protect the products produced by the process. As regards patents related to products, the Patent law offers exclusive right to the inventor or creator to stop unauthorised persons from making, using or providing for sale, selling or importing product in India.

Inventions Under Patent Law

As per Patents Act 1970, ‘invention’ is defined as a new product or process involving an inventive step and having the capability for industrial application. New invention implies any technology or invention that is not anticipated by any publication or has not been used in India or any place else around the globe prior to the filing date of the patent application. The implication is that the subject matter has not come into the public domain.

Hence, as per the definition of a new invention, the Patents Act stresses on complete or absolute novelty. This implies that such inventions should not be published or used in any part of the world.

Conditions for patent

  1. Novelty The invention should be one of a kind. This means that the invention should be new, and there must not be any existing trace of it or must not have been in the public domain.
  2. Non-obviousness or inventive step The invention should not be obvious to a person skilled in the same field related to the invention. It should be non-obvious and inventive to a person in the same field. It is required that the invention should be unique in itself.
  3. Capability for industrial application Inventions should also have a capability for industrial application. This implies that innovation cannot stay as abstract. It should have the capacity to be applied in any industry and should have practical utility in order to qualify for a patent.
  4. Utilit The invention must also be useful. It should contribute value to the life of a common man and must not support or benefit the use of illegal items or serve any immoral objective.
  5. Disclosure This implies that the draft specification of a patent should disclose the innovation adequately and properly so that a person skilled in the same field as the invention should be enabled to make the invention without excessive effort. In case of no proper disclosure of the invention in the patent specification, the patent will not surely be granted.

Who can file an application for a patent?

As per the Patents Act (Section 6), a patent application can be filed by any person, either alone or jointly with others, as the following:

  • Any person who is claiming to be the innovation’s first and authentic (i.e., true and first) inventor.
  • Any person who is a legal assignee of the above persons.
  • Legal representative of a deceased person who had the right to file a patent application just before his death.

Mode of submission

As per Patents Act (Section 7), every application for a patent shall be for only one invention. It should be in the prescribed format and filed in the office of Patents. Submissions can be made with the help of online patent services.

Procedure for application

The application for a patent involves the following steps:

  1. Conducting patentability search
  2. Drafting the patent specification
  3. File the application for patent with relevant forms
  4. Publication of the patent application
  5. Examination of the patent application
  6. Issuance of First Examination Report
  7. Responding to the First Examination Report
  8. Hearing, if required
  9. Disposal of the patent application
  10. Issuance of the patent certificate if the patent is granted
  11. Renewals of patents

In order to have your invention protected, it is good to consult a patent attorney. This helps in keeping all the documentation and processes in order.