Permanent Patent

File a Patent in India - An Overview

A patent is a right granted to an individual or enterprise by the government that excludes others from making, using, selling or importing the patented product or process without prior approval.

Patent filing is the first step an inventor takes to protect his/her invention from being misused. Patent filing in India is a fairly complicated ordeal, however, with the right legal guidance it can be done easily. Any business entity or an individual who believes in securing their patent, which is one of the intellectual properties should get legal consultation from expert Patent Practitioners. Vakilsearch helps you with the simplest way to file a patent.

Patent Filing - Who should do it?

Patent can be filed by any individual or business that wants to protect an invention. An invention can be a new product or a new process.

Why filing a Patent in India? - Benefits

Patent in India is a form of encouragement for innovations and inventions, and once a patent applicant files for it he or she becomes the exclusive owner of the invention if the patent is granted.

For patent filing in India, you must submit some forms at the patent office. If you own a digital certificate of Class 3, you can easily submit it online using the link http://ipindiaonline.gov.in/epatentfiling/goForLogin/doLogin". In the case of online applications, the patent office will be charging an additional 10% fee.

Offices for patent filing in India are spread across major cities like Mumbai, Chennai, Kolkata and Delhi. You need to file your patent at the respective offices in your locality. Filing a patent in India is important as it restricts the contenders from copying, selling or importing the inventors’ creation without their permission, and it is valid for a period of 20 years from the date of application of the patent.

Patent is just like any other intellectual property, can be transferred or sold by the inventor.

Advantages of owning a patent

A patented product is likely to improve brand perception and potentially enable your business to charge a premium.

Additionally,

• Patents can increase your business revenues while slowing down rivals for years to come.
• With exclusive rights, the owner of the patent controls the use of the invention for a full twenty years.
• Patents can be sold and licensed like other forms of property

Why should you opt for a Patent attorney/Agent?

Although the patent law does not mandate the assistance of a patent attorney or a patent lawyer, it is highly advisable to hire an agent because:

• Patent documents are complex in nature and requires technical expertise and legal knowledge to draft and file the application.
• Legislation of many countries requires an applicant, who resides in a foreign country or if the principal place of business is in some other country, be represented by a patent agent or attorney.

According to the Indian Patents Act, 1970, a patent agent is entitled to:

• Practice before the Controller
• Prepare all documents, transact all business and discharge such other functions as may be prescribed in connection with any proceeding before the Controller under this Act

How to get a Patent in India? – A detailed patent filing process

Patents can be secured by following the below-mentioned steps:

The procedure for the grant of the patent begins with the

Step 1: Filing a patent application:

For patent filing in India, one of the most crucial aspects to consider is the preparation of patent specifications. The entire process of patent specification drafting is a skilled task that can only be done by experienced professionals.

Ideation: Here, you need to clearly pen down the idea or concept, clearly mentioning the key details about the invention and the desired patent.

Visualisation: Visualise your idea and elements like diagrams that explain more about the invention.

Verification and Patentability Search:The next step is to verify whether your invention is patentable as defined in the Indian Patent Act. Some inventions may not be patentable, and it is necessary they meet the patentability requirements such as:

• Novelty
• Non-obviousness
• Usefulness
• Patentable subject matter

You can also conduct a patent search on http://ipindiaservices.gov.in/publicsearch with the help of experts.

Drafting a patent application is an art in itself. Seeking the help of a patent professional will be a wise choice here. If you are in the initial stages of the research and development process, then it is best to file an optional preliminary application called provisional patent application.

Step 2: Preparation of patentability report: Authorized patent professionals or patent agents will then do an extensive research and prepare the patentability report, that contains the analyses based on the above-mentioned criteria.

Why provisional patent application is a good idea before filing the patent application

A provisional patent application secures your date and work. This means that none of your competitors can file for a similar invention once you file for a provisional patent application.

• As India follows the first-to-file system, this ensures that the holder of the provisional patent would also be granted the permanent patent
• There is a buffer time of 12 months to further develop your invention and to specify the complete details. The application gets abandoned upon expiry of 12 months of the application
• The cost and resource involved for provisional patent application are less when compared to the permanent patent
• The provisional specification helps you assess the market potential of your invention before taking the final plunge and filing a complete specification.
• Once you are ready with your R&D and your invention’s detailed specifications, you can go in for a complete patent application.

Step 3: Publication of patent application: The application is then published after 18 months. A request to the early filing of application can be made along with a prescribed fee.

Please Note:

A. Patent Examination: would be a formal submission of a request for the patent examination that must be filed within 48 months from first filing the patent (provisional patent or complete patent). If failed to file within the time frame, per the Patent Act the application will be treated as withdrawn by the patent office. The examiner then conducts a comprehensive investigation and releases the first examination report called patent prosecution.

B. Patent objections: It is common that patent applicants receive objections, like “inconsistent or unclear claims”, “invention lacking novelty”, etc. Hence, it is mandatory to analyse the patent examination report and draft a proper response to the objections.

Grant of patent: Once all the patentability requirements are met, the patent grant notification will be published in the Patent Journal.

How to make money from Patenting your invention?

A person who has filed a patent in India can monetize his patent by either licensing it or selling it.

Licensing a patent:

A patent owner can license his idea to a person, and assign rights to the licensee to sell or make the patented invention. The patent holder can control these rights. A license agreement must include an upfront payment and a royalty percentage. Royalty is the percentage of the revenue earned from the licensed product over a period of time.

Selling of patent:

A patent filed in India can be sold to anyone within the country. That is, a patent can be sold in India if the inventor has patented his invention in India. By selling patents, inventors can usually demand a lump-sum payment and is best in the long run. He can be free from maintenance fees for the patent office, litigation fees and most importantly free from worrying about the future economic recession.

Publication of Filed Patent

For patent filing in India, the Indian patent office keeps every patent application confidential until it gets officially published in the Patent Journal.

The publication of filed patent happens automatically after 18 months from filing the applications, and there is no need of any request to be raised.

To get the patent published in advance, the applicant has to initiate a formal request and it will get published within 1 month of the request.

The publication date does matter the most as the inventor is entitled to protect his work legally post publication.

Licensed Patent agent in India

Before going for a patent filing in India, it is highly recommended to consider a licensed patent agent. A licensed patent agent in India is an individual registered for practicing before the Indian Patent Office. Patent agents will help in filling out the necessary forms, contacting the patent office, prosecuting patent applications, and in following up with any issues that arise during the filing of patent. To become a patent agent, the individual should be a citizen of India above 21 years of age and must have cleared the patent agent examination.

A patent examiner is the person who sends the list of rejections and at times when there arises the need to modify the patent application, patent agent can intervene and address the issue or argue against the rejection.

Patent attorney

Often the terms “patent lawyer” or “patent agent” are interchangeable but still there are some differences between both at some instances. Patent lawyers are legally qualified to provide advice on intellectual property, infringement and represent others in a court of law. Patent lawyers are also registered with the bar council whereas a patent agent generally holds a degree in engineering, science, and technology.

How can we help in Patent Filing process? Why Vakilsearch?

Vakilsearch can assist, right from filing the application till the granting of the patent. You can file both provisional patent and permanent patent applications with us.

Examination of Details

We will examine all the possible details, including potential uses of the invention across industries and the benefits over existing products.

Drafting of Application

We will recommend a verified lawyer who will take up your request and draft the application based on the details you provide.

Filing of Application

The drafted document will be filed with the Registrar and, on acceptance, you would be able to use 'Patent Pending' on your product any time over the next year.

Common types of patent applications in India

The most common types of patent applications in India are

• Ordinary application: An ordinary application is filed without claiming priority from any application or any reference to any other application under process in the Indian patent office. It is important to note that the filing date and the priority date are the same. An ordinary application is filed along with a complete specification and claims.
• Conventional application: When a patent application has already been filed in other country and when the patent is filed for the same invention in India, then this type of application is called conventional application. It is mandatory for the applicant to file the application in Indian patent office within 12 months from the date of first filing it in another country.
• PCT National phase application: A PCT National Phase application can be filed within 31 months from the international filing date.
• PCT International application: If you want to claim your priority in multiple countries, then filing a PCT application is important. It allows filing up to 142 countries. The time period is between 30-31 months from the international filing date to enter and claim protection in each country.

FAQs on Permanent Patent