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Online Patent Registration In India - An Overview

The term “Patent” denotes one of the pillars of Intellectual Property Right (IPR), and it is a right granted by the government to the inventor on his/her invention. Further, the term “right” includes the authority to make, sell, use, and import of the product or process and restricts others from doing the same.

It is governed and administered by the Patent Act 1970 and Patent Rules 1972 and remains valid for a period of 20 years. Moreover, the authority to manage the application for Patent Registration is with the Patent Office, Controller General of the Patents, Designs and Trade Marks.

Who can File for Patent?

In India, any individual or business entity that wants to protect and secure an idea or invention can apply for Patent. The term “Invention” includes both the new product and new process. Also, a natural person who is an assignee under the Patent Law and claims to be the true and first inventor of the art/ research has the right to make such an application.

The LRs or Legal Representative of a deceased person (who immediately before his death was entitled to make an application for Patent Registration) can file for Patent as well.

What can be Patented in India?

Any Invention that relates to Process, Work, Computer Software, Manufacturing, Machines, or any other type of Invention, which has never been invented before for the general public.

Further, the factors that are to be considered for registration are as follows:

Novelty

The first and the most important factor to consider before applying for registration is that the invention must be of a unique nature and must not have issued anywhere in India.

Non-Obviousness

The invention must not be obvious and simple in nature and needs to be considered by the skilled and experienced person.

Industrial Applicability

As per the last factor, the invention must be capable of being used by the industry.

Benefits of Patent Registration

The benefits of obtaining registration under the Patents Act 1970 are as follows:

Patent Registration Benefits

Protection of Invention

A Patent is an Intellectual Property Right that aims to protect ones creation or invention and restrict others to use it without obtaining the prior consent of the Inventor.

Sell or Transfer Patent

A Patent can easily be Sold, Transferred, or Franchised by the Inventor for generating revenue.

20 Years of Validity

In India, a registered Patent remains valid for a period of 20 years, starting from the date of registration.

Helps in Growing Business

A registered patent will help the inventor to grow his/her business and will assist in raising capital for the business as well.

Receive Royalties

The Patentor can receive Royalties by licensing his/ her product to other company.

Monopoly

After obtaining Patent Registration, both businesses and investors can enjoy both Market Monopoly and Competitive Benefit.

Requirements for Obtaining Patent in India

In India, the key requirements for obtaining a Patent are as follows:

Patentable Subject Matter

As per the provisions of the Patents Act, section 3 and 4 includes a comprehensive list of Non-Patentable subject matter. That means if an invention falls under such a list, the same will not be eligible for Patent Registration.

Inventive or Non-obviousness

The invention must not be obvious and simple in nature and needs to be considered by the skilled and experienced person. That means, it must be technologically advanced and economically profitable to be patented.

Novelty

The term “Novelty” denotes that invention must be of a unique nature and must not have issued anywhere in India. That means the same should not be in the public domain before the filing of the application.

Industrial Applicability

As per this requirement, the invention must be practical and operational in the industries and public domain.

Rules for Obtaining Patent in India

The rules for obtaining Patent in India are as follows:

  • The Fee for Patent will be payable as per the First Schedule of the Patent Act.
  • In case the applicant physically files the documents, then the authorities will charge an additional fee of 10%.
  • The different modes of paying the fees are as follows:
    • Electronic means
    • Demand Draft
    • Banker’s Cheque
  • The applicant will pay the fee to the Controller of Patents.
  • If in case the application form is transferred from a natural person to any person other than a natural person, then the new applicant needs to pay the remaining amount.
  • The case mentioned in above point will apply on Start-ups as well.
  • It shall be taken into consideration that the fee once paid, will not be refunded back, unless, there is some excess amount paid to the Controller of Patents.
  • The applicant needs to pay the fee in advance of the process of registration.
  • In case the applicant withdraws the application filed prior to the issuance of the objection, then some amount of the fee paid will be refunded back to the applicant.

Different Types of Patent Applications

In India, the different types of Patent Applications are as follows:

Types of Patent Applications

Ordinary Application

The term “Ordinary Application” denotes a fresh application filed at the Indian Patent Office. Further, in this case, both the filing and priority date are same for the application.

Conventional Application

The term “Conventional Application” denotes an application that is previously filed by the applicant in some other country and wants to file the same in India as well. Further, it shall be relevant to take into consideration that the applicant needs to file the said application within a period of 12 months, starting from the date of its first filing.

PCT International Application

The term “PCT International Application” denotes an application that is filed by the applicant in multiple countries. One can file this application in a maximum of 142 countries. Also, the same will take around 30 to 31 months for claiming protection in each country, starting from the date of International Filing.

PCT National Phase Application

The term “PCT National Phase Application” denotes an application filed by the applicant in India just like other countries for claiming protection. The applicant needs to file the same at the Indian Patent Office within a period of 31 months, starting from the date of International Filing.

Forms for Patent Registration in India

S.no

Stages of the Process for Patent Registration

Form No.

1.

Application for the Grant of Patent;

Form 1

2.

Provisional/ Complete specification;

Form 2

3.

Statement and Declaration under section 8;

Form 3

4.

Declaration as to Inventorship;

Form 5

5.

Forms furnished only by start-ups and small business entities;

Form 28

Documents Required for Obtaining Patent Registration

In India, the documents required for obtaining Patent Registration are as follows:

  • Application for Patent Registration in Form 1.
  • Proof of Right to file Patent Application. Further, this proof needs to be attached along with the application for Registration.
  • In case the applicant does not have complete specifications, he/ she needs to file the provisional specifications. However, in case of provisional specifications, the applicant requires to file the complete specifications with a period of 12 months in Form 2.
  • Form 3 for filing Statement and Declaration under section 8.
  • Form 26 for Power of Attorney, in case the application for Patent Registration is filed by the Patent Agent.
  • In the case of Biological Material, the applicant needs to obtain permission from the NBA (National Biodiversity Authority), before the issuance of the patent.
  • Also, in the case of Biological Material, the applicant needs to mention the source of Geographical Origin.
  • The application for registration must bear the signature of the Applicant/ Patent Attorney/ Authorised Person.
  • MSME or Start-up India Certificate, if in case any.
  • The Applicant/ Agent needs to sign the last page of the Complete/ Provisional Specification.

Procedure for Obtaining Patent Registration in India

The steps involved in the procedure of obtaining Patent Registration in India are as follows:

Patent Registration Procedure in India

Patent Search

The first step in the process for registration is to get aware of the Non-obviousness and Novelty of a Patent by conducting Patent Search. It will assist the applicant in knowingwhether the patent of similar nature is already registered or not.

Drafting of Patent Application

Once the applicant has completed the process of patent search, he/ she needs to get the application drafted in Form 1. Also, he/she requires to attach the specifications with each Patent Application in Form 2.

Filing of Patent Application

In this step, the applicant needs to file the application for Patent Registration with the Indian Patent Office.

Review of Patent Application

After filing the application for Patent Registration, the same will be verified by the Indian Patent Office of the Government of India.

Grant of Patent

Once the authorities are satisfied by the application filed for Patent Registration, the same will grant the Patent for applicant’s invention. Further, it shall be taken into consideration that the period required for the issuance of patent certificate ranges from 6 months to 1.5 years.

Fees for Filing Patent in India

The two ways for filing Fee for Patent Application are as follows:

  • E-filing
  • Physical Filing

E-Filing

Particulars

Individual

Small Entity

Other Than Small Entity

For Filing Patent Application;

Rs 1600

Rs 4000

Rs 8000

For each page of Specification along with 30 pages;

Rs 160

Rs 400

Rs 800

For each claim along with 10 claims

Rs 320

Rs 800

Rs 1600

Physical Filing

Particulars

Individual

Small Entity

Other Than Small Entity

For Filing Patent Application;

Rs 1760

Rs 4400

Rs 8800

For each page of Specification along with 30 pages 

Rs 176

Rs 440

Rs 880

For each claim along with 10 claims

Rs 352

Rs 880

Rs 1760

Patent Registration FAQs

No, an application for Patent Registration is not examined automatically after filing.

A Patentee needs to pay renewal pay every year. However, he/she can pay the same in a lump sum as well.

Yes, an IDA is located in Chandigarh, and the same is acknowledged as IMTECH (Institute of Microbial Technology).

Forms 18A, 29, and 30 have been recently introduced after the Patents (Amendment) Rules 2016. Further, Form 18A has been amended after the Patents (Amendment) Rules, 2019.

A Patent Office Journal includes details concerning Patent applications issued under section 11A; Notifications; Post Grant Publications; List of non-working Patents including Public Notices; and Restoration of Patents.

Yes, India has 4 patent departments situated at Mumbai, Kolkata, New Delhi, and Chennai. Further, every office has its separate provincial jurisdiction.

Yes, an applicant can demand early publication in Form 9, together with the fees prescribed.

After receiving Form 9, the Patent Office will publish such a request within a period of 1 month. However, the application must not have a link to the Atomic energy or Defense scheme.

If you are not able to file a reply within a period of 6 months or not able to take an extension of 3 months, then the request will be considered as abandoned.

No, there is no fee prescribed for filling a description for Pre-grant Opposition.

Section 25(1) of the Patents Act 1970 deals with the areas for filing representation.

The term “Patent” denotes an exclusive right granted to the patentee for his/her innovative invention. Further, this right is given for a limited period of time.

The IPD (Intellectual Property Department) has the authority to issue Patent in India.

A registered patent can exclude others from making, using, importing, selling, a patented product or procedure for producing that product without the prior consent of the patentee.

No, the Indian Patent is valid only in the territorial limits of India.

Yes, after acquiring Patent Registration in India, one can file an application to the PCT located in India.

A new invention that includes innovative and inventive steps can be patented in India.

For Patent, Swarit Advisors can file an application for registration on your behalf as we have a team of IPR experts who have a previous track record of filing a patent registration application in India.

The term “Industrial Applicability” denotes that an invention is practically feasible. However, the invention should be of such nature and type, which can be easily used in any kind of industry.

Yes, an application for patent registration can be filed online. The same has been made possible after the Indian Patent Office launched an online platform for filling registration applications in 2007.

The term “Criteria” includes novelty, inventive step, and capability for Industrial Application.

Yes, you can file an application for patent registration prior to the publication of the invention.

Yes, a grace period of 12 months is offered under the Patent Act. That means one can file an application within 12 months, starting from the date of publishing of the invention.

No, it is not necessary. However, it is always preferred to file it, as it provides the applicant enough time to analyze the market potential of his/her invention.

The application for patent Registration gets published after the expiry of 18 months, starting from the date of filing patent registration or priority date.

A Patent has a validity of 20 years. That means after that, it falls under the public domain.

Yes, you can restore the patent by filing an application for restoration within 18 months, starting from the date of cessation, together with the requisite fees.

No, there is no need to visit the Patent Office, unless the applicant has been called for an interview with the examiners concerning the application for Patent Registration.

The types of applications include Ordinary Application; PCT Application; Convention Application; Patent in Addition; and Divisional Application.

The term “Patent of Addition” denotes an additional patent application filed by the applicant for modification or improvement in the main application for patent registration.

The term “Divisional Application” denotes the application filed in a case where there are more than 1 invention, and the same needs to be disclosed in the patent application.

The term Patent Search denotes the process to determine similar invention and value addition in the Patent Application.

The date of filing the application for patent registration, whether complete or provisional, is the priority date.

The applicant needs to visit the official website and fill the e-application form for Patent Registration.

The term owner denotes the person having the authority to file a pending application and take action against infringement.

Yes, the rights of the owner are transferable in nature.

Yes, a patent assists businesses in making money by commercializing, selling, and licensing patent rights, etc.

The approximate cost for registering a patent will be between Rs 45000 to 65000.

WIPO Patent Search or USPTO Patent Search can assist in conducting searches in India.

One can check the same by conducting a Patent Search in India.

The term Patent Search denotes a step prior to the filling of patent registration application. It helps the applicant to check whether a patent of similar nature exists or not.

Yes, it is necessary to conduct Patent Search to know about the existing patents.

The main difference between the both is that the former protects the work of an author or creator, whereas, latter protects the invention of a patentee.

In India, a patent is granted only for a period of 20 years. That means an extension of a patent is not possible in India.

Yes, it is possible for a patent owner to reinstate his/her patent, if it expires. The interested person just needs to pay a surcharge, together with the maintenance fee.

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