Filing of Patent Application in India
The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patents (Amendment) Rules 2006 effective from 05-05-2006.
A Patent is an intellectual property right relating to inventions and is the grant of exclusive right, for limited period, provided by the Government to the patentee, in exchange of full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process producing that product for those purposes.
WHAT IS A PATENTABLE INVENTION
A new product or process, involving an inventive step and capable of being made or used in an industry. It means the invention to be patentable should be technical in nature and should meet the following criteria –
i) Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
ii) Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.
iii) Industrially applicable: Invention should possess utility, so that it can be made or used in an industry.
TYPES OF PATENT APPLICATIONS
a) Ordinary Application
b) Application for Patent of Addition (granted for Improvement or Modification of the already patented invention, for an unexpired term of the main patent).
c) Divisional Application (in case of plurality of inventions disclosed in the main application).
d) Convention application, claiming priority date on the basis of filing in Convention Countries.
e) National Phase Application under PCT
APPROPRIATE OFFICE FOR FILING AN APPLICATION & FOR OTHER PROCEEDINGS
Application is required to be filed according to the territorial limits where the applicant or the first mentioned applicant in case of joint applicants, for a patent normally resides or has domicile or has a place of business or the place from where the invention actually originated. If the applicant for the patent or party in a proceeding having no business place or domicile in India, the appropriate office will be according to the address for service in India given by the applicant or party in a proceeding . The appropriate office once decided in respect of any proceedings under the Act shall not ordinarily be changed. The four patent offices are located at Kolkatta, Mumbai, Delhi & Chennai
WHO MAY APPLY
The inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee.
If the application is made by the legal representative ‘death certificate’ of the deceased should be filed as proof of right. Proof of right may be submitted within three months of application.
Application for patent (Form 1) in duplicate should be accompanied by the following documents. The fee (Rs.1000/- for natural person or Rs.4000 /- for other than natural person) can be paid within one month.
DOCUMENTS REQUIRED FOR FILING AN APPLICATION
1) Application form in duplicate (Form 1).
2) Provisional or complete specification in duplicate. If the provisional specification is filed, it must be followed by the complete specification within 12 months.(Form 2).
3) Drawing in duplicate (if necessary).
4) Abstract of the invention in duplicate.
5) Information & undertaking listing the number, filing date & current status of each foreign patent application in duplicate (Form 3).
6) Priority document (if priority date is claimed) in convention application, when directed by the Controller.
7) Declaration of inventor-ship where provisional specification is followed by complete specification or in case of convention/PCT national phase application (Form 5).
Fee (to be paid in cash/by cheque/by demand draft).
9) Power of attorney if filed through patent agent
(Note: The cheque or demand draft should be payable to the “Controller of Patents” drawn on any schedule bank at a place where the appropriate office is situated).
GRANT OF PATENT
- After filing Patent Application in India, a Request for Examination is filed with the Patent Office
- Thereafter, the application is examined by patent office and objections, if any, are raised thereto.
- After removal of all the objections, the Patent is granted and is advertised for Opposition Purposes.
- The Patent is Open for third party opposition(s), if any, for a period of ONE YEAR from the date of advertisement.
TERM AND DATE OF PATENT
Term of every patent will be 20 years from the date of filing of patent application, irrespective of whether it is filed with provisional or complete specification. Date of registration of patent is the date on which the application for patent is filed.