Patent in India

What is a Patent in India?

A Patent in India is twenty years monopolistic protection granted to the applicant for an invention that has novelty, inventive step and industrial use. A patent in India gives its owner an exclusive right to commercially make, use, distribute, sell, or license the invention for financial gain. A patent in India is granted for an invention, which may be a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.

The patent, in the eyes of the law, is an intellectual property right and it can be given away, inherited, sold, licensed, and can even be abandoned. A patent in India lasts for 20 years.

Who can apply for a Patent in India?

An application for Patent in India for an invention may be filed by any of the following persons either alone or jointly with any other person:

• True and first inventor
• True and first inventor’s assignee
• Legal representative of deceased true and first inventor or his/her assignee

Requirements for filing an application for a Patent in India

• Name, address and nationality of each inventor and applicants
• A copy of the Complete Specification which must include claims, abstract and drawings
• Verified English translation of the priority documents
• A Power of Attorney signed by an applicant or an authorized person of each applicant
• Proof of Right: a document transferring the rights from inventor to the applicants
• Information of the status of the patent applications filed in other jurisdictions for the same invention.

Procedure of prosecuting a Patent in India

After filing an application for a Patent in India, examination must be requested within 48 months from the filing date.

​After requesting examination, it will typically be 12-18 months before a first examination report is issued. A response to the first examination report must be filed within six months of its date. The applicant must put the patent in order for grant within 12 months from the date of the first examination report.

​Following successful examination, the application will proceed to acceptance and third parties are provided with an opportunity to oppose the grant of a patent within 3 months of the advertisement of acceptance. If there is no opposition, a patent will be granted shortly thereafter.

Inventions that can be Patented in India

An invention must, in general, fulfill the following conditions to be protected by a patent in India.

• The invention must be new, it must show an element of novelty that could not be deduced by a person with average knowledge of the technical field.
• It must involve an inventive step.
• It must be capable of being used or applied in trade or industry.

Inventions that can not be patented in India

According to The Patents Act, 1970 the following inventions can not be patented:

• Frivolous or claiming anything obviously contrary to established natural laws.
• Contrary to public order or morality or prejudicial to life or environment.
• Discovery of scientific principle or formulation or discovery of living or nonliving substance.
• Discovery of a new form of property or use of a known substance or new use of a known process or machine or an apparatus not resulting in a new product.
• Substance obtained from the admixture of known components resulting in the only aggregation of their properties.
• Mere rearrangement or duplication of known devices.
• A method of agriculture or horticulture.
• Medical treatment or procedure of humans or animals.
• Plants or animals or seeds and biological processes of production or prorogation of these.
• Mathematical or business method or computer program or algorithm.
• Artistic or aesthetic creation like literary, dramatic, musical, or cinematographic or television production.
• Scheme or rule or method of performing any mental act or of a game.
• Presentation of information.
• Topography of integrated circuits.
• Aggregation or duplication of known properties of components.
• Inventions relating to atomic energy.

Why should I file a patent application in India?

Filing a patent in India can offer several benefits for individuals and businesses, including:

1. Protection of your invention: Filing a patent in India can provide legal protection for your invention, preventing others from making, using, selling, or importing your invention without your permission. This can help you safeguard your intellectual property rights and prevent others from exploiting your invention.
2. Access to a large market: India is a large and rapidly developing market, with a population of over 1.3 billion people. By filing a patent in India, you can gain access to this market and potentially secure a competitive advantage over others who have not filed patents in India.
3. International recognition: Filing a patent in India can provide international recognition for your invention, as India is a signatory to several international treaties and agreements related to intellectual property protection. This can help you protect your invention not only in India but also in other countries around the world.
4. Government support: The Indian government has implemented several initiatives and programs to promote innovation and entrepreneurship, including support for patent filing and prosecution. This can help you access funding, resources, and expertise to further develop and commercialize your invention.
5. Cost-effective: Filing a patent in India can be relatively cost-effective compared to filing patents in other countries. The fees for filing and prosecuting patents in India are generally lower than those in many other countries, making it a more affordable option for individuals and small businesses.

Why to manufacture in India?

There are several reasons why manufacturing in India can be a favorable option for businesses:

Skilled workforce: India has a large pool of skilled workers, especially in industries such as IT, engineering, and pharmaceuticals. This can make it easier for businesses to find and hire the talent they need to run their manufacturing operations.ct your rights.

Large and growing market: India has a large and rapidly growing market with a population of over 1.3 billion people. This presents a significant opportunity for businesses looking to expand their customer base and tap into new markets.

Low labor costs: India has a large pool of skilled and unskilled labor that is available at relatively low costs compared to many other countries. This can make it more cost-effective to manufacture products in India, especially for labor-intensive industries.

Government incentives: The Indian government has implemented several initiatives and policies to encourage investment in manufacturing, such as tax incentives, subsidies, and streamlined approval processes. This can make it easier and more attractive for businesses to set up manufacturing operations in India.

Access to raw materials: India is rich in natural resources and raw materials, such as iron ore, coal, cotton, and spices. This can provide businesses with easier access to the materials they need to manufacture their products.

What kind of protection does a Patent in India offer?

Patent protection means that the invention cannot be commercially made, used, distributed, or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.

What rights does a Patent owner have?

A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may permit to, or license, other parties to use the invention on mutually agreed terms.

The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent.

Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.

Why are Patents necessary?

Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions in the form of an economic monopoly over their inventions.

These incentives encourage innovation, which assures that the quality of human life is continuously enhanced.

The economic and scientific monopoly is limited by the period, usually twenty years.

How is a Patent granted in India?

The first step in securing a patent is applying for a patent in India. The patent application contains the title of the invention, as well as an indication of its technical field; it must include the background and a description of the invention, in plain language and enough detail that an individual with an average understanding of the field could use or reproduce the invention.

Such descriptions are usually accompanied by visual materials such as drawings, plans, or diagrams to better describe the invention.

The application also contains various ‘claims’, that is, information which determines the extent of protection granted by the patent.

The application is minutely examined to ensure that it contains no claim over any prior art, and the claims are within the scope of the disclosure described in the specification. The applicant needs to overcome all objections of the Patent Office to secure a successful grant of patent.

Who grants a Patent in India?

A patent in India is granted by a national patent office known as the Intellectual Property Office of India.

Patents in other countries are granted by national offices or by a regional office that does the work for several countries, such as the European Patent Office and the African Regional Intellectual Property Organization.

Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders.

The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries.

An applicant seeking protection may file one application and request protection in as many signatory states as needed.

How can a patent be obtained worldwide?

At present, no ‘world patents’ or ‘international patents’ exist. In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, by the law of that country.

In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the Member States of that region.

Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT.

However, under the PCT system, to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. Further information concerning the PCT is available.

Procedural and substantive requirements for the grant of patents as well as the fee required are different from one country/region to the other.

It is therefore recommended that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection.

Can I disclose my invention to a potential investor before filing a patent application?

It is important to file a patent application before publicly disclosing the details of the invention.

In general, an invention which is made public before an application is filed would be considered prior art (although the definition of the term ‘prior art’ is not unified at the international level, in many countries, it consists of any information which has been made available to the public anywhere in the world by written or oral disclosure).

In countries which apply the above definition of the term ‘prior art’, the applicant’s public disclosure of the invention before filing a patent application would prevent him/her from obtaining a valid patent for that invention, since such invention would not comply with the ‘novelty’ requirement.

Some countries, however, allow for a grace period, which provides a safeguard for applicants who disclosed their inventions before filing a patent application, and the novelty criteria may be interpreted differently depending on the applicable law.

If it is inevitable to disclose your invention to, for example, a potential investor or a business partner, before filing a patent application, such a disclosure should be accompanied by a confidentiality agreement.

Who is a patent attorney in India?

A patent attorney in India is a legal professional who specializes in patent law. Their main role is to assist individuals and businesses with the process of obtaining and protecting patents. This includes conducting patent searches to determine whether an invention is eligible for patent protection and preparing and filing patent applications with the relevant patent office.

Patent attorneys also provide legal advice and counseling to clients on patent-related matters, such as patent infringement, licensing, and portfolio management. They may also assist with the negotiation and drafting of contracts involving patents, such as licensing agreements and assignment agreements.

To become a patent attorney, one must typically have a law degree and be admitted to practice law in their jurisdiction. Additionally, one must have a technical background in science or engineering, which typically requires a degree in a related field. In India, specialized certification or training in patent law may also be required.

Do I need a patent attorney in India?

A patent attorney can provide valuable assistance in obtaining and protecting patents. Here are some reasons why you may need a patent attorney:

1. Patent searches: A patent attorney can conduct a thorough search to determine whether your invention is eligible for patent protection and whether any similar inventions have already been patented. This can help avoid potential legal issues down the road.
2. Patent application: A patent attorney can guide you through the process of preparing and filing a patent application with the relevant intellectual property office. This can help ensure that your invention is properly protected and enforced.
3. Responding to office actions: If your patent application receives an office action, a patent attorney can assist with responding to the issues raised and navigating the legal process.
4. Patent infringement: If someone else is using your invention without permission, a patent attorney can help you enforce your patent rights and take appropriate legal action.
5. Licensing agreements: If you wish to license your patent to another party, a patent attorney can assist with the negotiation and drafting of licensing agreements to protect your interests.

Overall, a patent attorney can provide expertise and guidance to help protect your patent rights and avoid potential legal issues.

Attorney fee for patent in India

Fee for Indian applicants in Rupees

Official fee for filing a Patent in India

Action Particulars – in US$	Individual	Large Firm
Filing application for Patent	30	130
For each additional priority	30	130
Each additional page over 30	03	14
Each additional claim over 10	06	28
Filing request for examination	70	300

Action based attorney fee for a patent in India

Particulars	US Dollars
Consultation charges per hour or part thereof	100
A search of Patent Database	200
Drafting of Complete Specification	400
Amendment of Specification due to objections	200
Attending to serious objections at the patent office/hearing	350
Attorney fee for Filing a READY TO FILE application (30 Pages/10 Claims)	400
Attorney fee for prosecuting an application at the Patent Office	175 per response
Alternatively – FLAT ONE TIME attorney fee for filing & prosecution of application till grant of Patent	1125

Written by Mahesh Bhagnari, Patent & Trademark Attorney in India.