Patent Registration

The complete patent registration process involves a series of steps which are to be mandatorily followed to get a patent in India. Both individuals and businesses can apply for patent registration for their inventions.

What is a Patent?

A ‘Patent’, in basic terms, is an exclusive right that is granted to any invention (whether a process or a product) under the Patents Act. An ‘invention’, as per the Patents Act is defined as ‘a new product or process involving an inventive step and capable of industrial application’. The definition highlights three important components, also referred to as the patentability requirements, namely:

The invention should be a new invention i.e., the invention should not be disclosed in the public domain in any manner prior to the date of filing of patent application.
The product or process that has to be patented should involve an inventive step i.e. the invention should in some manner involve technical advancement as opposed to the existing knowledge. In simpler words, the invention should not be obvious to another person possessing the same skill set.
The invention should be capable of industrial application, i.e. the process or product intended to be patented should have the ability to be used or made in a particular industry or any industry.

It is only upon satisfying these requirements that an invention becomes eligible for protection under the Patents Act, 1970.

Drafting of patent application

Once the search is complete and through, the next step involved is to prepare an application form in form 1.
Each application has to be accompanied by a patent specification. This has to be prepared in form 2 where one has to provide the complete or provisional specification depending upon the state of the invention(Whether its partially completed or completed). In case one files a provisional application, a time gap of 12 months is provided to finalize the invention and file the complete application.
A patent draft will also be required to be submitted along with the application. The patent draft is considered a very important document as the same will be used by the patent office in deciding whether or not patent should be granted.

Filing the patent application in India

No	Stages of the patent process	Form No.
1.	Application for grant of patent	Form 1
2.	Provisional/complete specification	Form 2
3.	Statement and undertaking under section 8 (this is only required where a patent application is already filed in the country other than India)	Form 3
4.	Declaration as to inventorship	Form 5
5.	Forms submitted only by start-ups and small entities.	Form 28

Publication of patent application

Patent application filed with the Indian patent office will be published in the official patent journal. This is generally done after 18 months of filing the application. In case one wants to get it published earlier, he can make a request in form 9 for early publication. When a restriction is placed by the Indian patent act with regards to the publishing of the patent, the same will not be published in the journal.

Examining of patent application

Every application filed for protection will be examined before a patent is finally granted. The application has to be made for examination in form 18. The earlier one makes a request, the earlier the application will be examined by the examiner. Once the application is filed, it is transferred to the patent officer who will examine the application to ensure the same is in accordance with the patent act and rules. A thorough search is conducted by the officer where he/she analyses the relevant technology in depth and the objections, if any, will be communicated. The report issued in this case is called the First Examination Report(FER).

Grant of patent

The patent is granted once all the objections raised by the officer are resolved.

Rules to keep in mind while filing the patent application

The fees payable with respect to the grant of patents and applications therefor, and in respect of other matters for which fees are required to be payable are specified in the First Schedule.
An additional fee of 10% is payable when the applications for patent and other documents are filed physically.
The fees payable under the Act or rules may be paid at the appropriate office either in cash, or through electronic means, or may be sent by bank draft, or banker‘s cheque. The amount is payable to the Controller of Patents and drawn on a scheduled bank at the place where the appropriate office is situated. If the draft or banker‘s cheque is sent by post, the fees shall be deemed to have been paid on the date on which the draft or banker‘s cheque has actually reached the Controller.
Where a fee is payable with respect to a document, the entire fee shall accompany the document.
In case of transfer of application from a natural person to other than a natural person, the difference, if any between the fee shall be paid by the new applicant with the request for transfer.

In case an application by a small entity is fully or partly transferred to a person other that a natural person, the difference, if any, between the fee shall be paid by the new applicant with the request for transfer.

In case an application processed by a start-up is fully or partly transferred to any person other than a natural person or a start-up, the difference, if any, can be charged from a start-up and such person to whom the application is transferred. In short this shall be paid by the new applicant along with the request for transfer:

Explanation: Where the start-up ceases to be a start-up after having filed an application for patent due to lapse of more than five years from the date of its incorporation or registration or the turnover subsequently crosses the financial threshold limit as defined, no such difference in the scale of fees shall be payable.

Fees once paid in respect of any proceeding shall not ordinarily be refunded irrespective of whether the proceeding has taken place or not:

Exception: If the Controller is satisfied that during the online filing process, the fee was paid more than once for the same, the excess fee shall be refunded.

A refund is initiated only if an applicant withdraws his request for examination before the first statement of objection is issued. Please note that this refund is only to the extent prescribed in the First Schedule.
Any person may deposit money in advance and request the Controller to realize any fee payable by him from the said deposit.
Subject to the approval of the Controller, any person may discontinue the deposit of money in advance and in such case the balance, if any, shall be refunded.

FAQs

What is a patent?

A patent is an exclusive right granted in respect of an invention (which can either be a product or a process). A grant of patent protects an invention from being commercially used, distributed, marketed, imported or re-created.

What are the documents required for filing an application for grant of patent?

The following documents are required for filing a patent application: Form 1 (application) or Form 28 (application for start-ups or small entities); Form 2 (specifications); Form 3 (statement and undertaking in case of an international application); Form 5 (declaration of inventorship) and Form 26 (power of attorney, in case the applicant is desirous of appointing an agent for filing and prosecuting the patent application).

What are the patentability requirements considered by the examiner while examining an application?

The patentability requirements considered by an examiner include that the invention should be novel i.e. it should not be existing in the public domain; it should include an inventive step i.e. it should be an advancement vis-à-vis the existing knowledge; and lastly it should be capable of industrial applicability.

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