Sunday, October 5, 2008

How to file patent in India

In general, new inventors or start-up companies do not know the practice of filing a patent in India or how to obtain a patent in India. Unfortunately, there is no complete guideline or information available for them before proceeding to file a patent. Here, you will be able to know the basic of patent filing process in India.

Under Patent Act, the invention to be patentable should meet the following criteria.

i) Novel: The invention disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
ii) Inventive: 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 the industry.

The above step is critical to identify novelty and inventiveness of the invention. It requires skill to perform prior art search, patent search, claim understanding etc. Before performing the patentable analysis, inventor should verify the non-patentable matters as mentioned below.

Under Section 3 & 4 in Patent Act, and in sub section 3 (a) to 3 (p) gives the areas of inventions not patentable. For example,

· invention which is against natural laws;
· causes injury to human, animal or plant life or health or to the environment;
· mere discovery of a scientific principle;
· mere discovery of thing occurring in nature;
· mere discovery of a new form of a known substance;
· substance obtained by a mere admixture;
· mere arrangement or re-arrangement or duplication of known devices;
· method of agriculture or horticulture;
· any process of treatment of human beings;
· plants and animals excluding microorganism but including seeds;
· mathematical or business method or a computer programme per se or algorithms;
· artistic works;
· method of performing mental act or method of playing game;
· a presentation of information;
· topography of integrated circuits;
· traditional knowledge; and
· invention related to atomic energy.

Normally, non-patentable matter can be verified by you; however it is advisable to cross-check from your patent agent or patent attorney. In case, your invention falls under above list, you will not be required to pursue patentable analysis and/or patenting your invention, otherwise you can proceed for patentable analysis and patenting your invention.

The patentable analysis can be done by you if you are familiar with prior art search or by your patent agent. To know more about patent search, please visit the link Patent search. Before providing all the information relevant to your invention in an invention disclosure format to your patent agent, ensure to enter in a Non-disclosure agreement with your patent agent. If the outcome of analysis is favorable to your invention for patenting, you can go ahead for filing patent application in India.

Next step is to draft the patent specification; again it can be done by you if you are familiar with patent drafting or by your patent agent. To learn about patent drafting skill, please visit the link patent drafting. In India, a patent specification has the following elements such as

· Title of Invention
· Field of Invention
· Background
· Summary of Invention
· Brief description of drawings
· Description of invention
· Examples if any
· Specific embodiments if any
· Abstract
· Claims
· Drawing/diagram/flow-chat

After completion of patent drafting, you can file it as provisional or complete application. And then, your patent agent will file the patent specification with the following forms and documents at appropriate offices in India.

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) Information & undertaking listing the number, filing date & current status of each foreign patent application in duplicate (Form 3).
4) Priority document (if priority date is claimed) in convention application, when directed by the Controller.
5) Declaration of inventor-ship where provisional specification is followed by complete specification or in case of convention/PCT national phase application (Form 5).
6) Power of attorney (if filed through Patent Agent) (Form 26).

Please feel free to comment your view on this post.

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5 comments:

UMA November 14, 2008 at 7:40 AM  

Workshops on IP have been conducted by several authorities. It is expensive to attend workshops for students. IP is an emerging field in India. It needs to be disseminated. It will be useful to students if they are allowed to attend workshops or conferences free of charge/fee.

Meenakshi September 12, 2011 at 3:53 PM  

As a student of IPR I find this article is very useful to us. the patent application procedure has been clearly discussed over here, like provisional specification and complete specification. now I want to know whether The 'Best Mode Doctrine' is applied in Indian patent application procedure unlike U.S. or not?

Nitin,  September 23, 2011 at 5:48 PM  

Well you could have also mentioned as to what might be the costs (Govt Fees) (approx Attorney Fees) involved while filing the idea.

Palani,  December 23, 2011 at 7:19 PM  

Excellent article which can guide for even newbies like me , Thanks.

Anonymous,  January 8, 2013 at 10:54 PM  

Is there a roadmap to filing a patent. Any contact information for patent attorneys would be helpful too.

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