PATENTS IN INDIA

In India, patents are granted to protect new inventions, that involve an inventive step and are capable of industrial application. The patent system in India is regulated by the Indian Patent Act, of 1970, and administered by the Indian Patent Office, which is under the Controller General of Patents, Designs & Trade Marks.

Not every invention gets patented. A patent is granted to the owners once their invention satisfies the conditions of patentability. Three conditions need to be satisfied by the inventor to get his invention patent otherwise the invention does not get patent. These are as follows-

1. The invention should be novel, which implies that it should not be in existence.
2. The invention should be capable of commercial application.
3. The invention should be non-obvious, which means that there should be a significant improvement to the previous invention.

Here are some important facts about patents in India:

• Types of Patents: In India, patents can be obtained for inventions related to products, processes, or improvements thereof in various fields of Technology, Pharmaceuticals, Automobiles etc. 

• Patent Duration: Generally, a patent in India is granted for a period of 20 years from the date of filing of the patent application. However, annual renewal fees need to be paid to maintain the patent.

• Patent Application Process: To acquire a patent in India, an individual or entity needs to file a patent application with the Indian Patent Office. The application is examined to ensure it meets the patentability criteria. The process involves several stages, including publication, examination, and grant.

• Patentable Subject Matter: Inventions related to processes, machines, manufactures, compositions of matter, and new uses of any of the aforementioned are patentable in India. However, there are exceptions, such as discoveries, mathematical methods, business methods, algorithms, mental acts, computer programs, etc., which are not considered patentable subject matter.

• Patent Rights: Patent holders have exclusive rights to prevent others from making, using, selling, importing, or distributing the patented invention without their permission.

• Patent Cooperation Treaty (PCT): India is a signatory to the Patent Cooperation Treaty, which allows applicants to seek patent protection for an invention simultaneously in multiple countries by filing a single international patent application.

• Licensing and Enforcement: Patent owners can license their patents to others or take legal action against those who infringe upon their patented rights.

• Patent Offices: India has various patent offices located in different regions: Kolkata, Mumbai, Chennai, and Delhi. These offices handle patent applications and related proceedings.

The process of obtaining a patent in India involves several steps and can be complex for a layman to file. It's often beneficial to seek legal guidance or the help of a patent professional to navigate the process effectively.

Three types of patents are patented and protected by the law and these are as follows:

1) Utility Patents

Utility patents are the most commonly sought-after patents and cover new and useful processes, compositions of matter, machines, and manufacturers. They can also be obtained for improvements to existing processes, compositions of matter, machines, and manufacturers. As an innovator from India, you can apply for utility patents in various countries, including Australia, the UAE, China, Germany, France, and other countries within the European Union.

2) Design Patents

A Design Patent is a kind of patent that secures the surface ornamentation of an object, which can also include the object's shape or configuration. It can only be obtained when the design is inseparable from the object, and it solely protects the object's appearance. To protect the functional or structural features of an object, an individual must file for a utility patent.

3) Plant Patents

Plant patents are specific to the invention or discovery and asexual reproduction of a distinct and new variety of plants. These patents are granted for new plant species that are asexually reproducible, ensuring the plant's distinctiveness and stability.

PROCESS OF FILING OF PATENT REGISTRATION

1. Filing of Application

The first step in patent registration is filing a patent application. This can be done either through e-filing on the official government website or by submitting a physical copy of the application to the appropriate Indian Patent office based on the Applicant’s location. There are four Indian patent offices located in Delhi, Kolkata, Mumbai, and Chennai that offer the facility to obtain a compatible patent based on specific conditions and terms. To get an instant patent, it is necessary to have an error-free application, otherwise, it may be rejected.

The patent application must contain specific information such as the name, nationality, type of application, and address of the Applicant(s) and inventor(s), among other details.

2. Publication by the Patent Office

As per the Patent Law, a patent application is usually published in the Indian Patent Office database after 18 months from the filing date. This is an automatic process and doesn't require any request. However, if you want an early publication, you can make a request, and the application will be published within one month of the request.

It's important to note that the authorities handle this process, and applicants need to wait to check the status of their applications. It may take a few weeks or months for the authorities to communicate through mail, informing them about the publication.

To check the application, you need some basic details, which you should maintain a record of to avoid replicas or copies for the same patent. This reduces the workload for authorities. So, every applicant should check the details before filing their application. The details are available on the portal, and everyone can access them.

3.  Filling a request for Examination

To register a patent, the examination of the patent application is not automatic. Rather, it requires a separate request for examination. The patent applicant can file a request for examination of their patent application. Once the request is received, the patent examiner will examine the application. It is also possible for an applicant to apply for an expedited examination, but this option is only available to start-ups.

4. Registration is granted or Rejected

After the patent application has been submitted and all formalities have been fulfilled, any objections will be addressed. Once the objections have been overcome, the final status of the patent will be uploaded. The patent is then registered and finally given to the applicant. It becomes a part of the patent gazette, thus completing the patent registration process. The registration is valid for 20 years and requires yearly renewals.

These steps apply to all patent registration processes in India and require the assistance of a legal guardian to ensure they are completed correctly otherwise the patent will get rejected if any of the above steps will not be followed.

Filing of a patent as an Opportunity and a Challenge

Filing a patent involves both challenges and opportunities. Understanding these can help individuals or companies to make informed decisions regarding their inventions and the patenting process.
 

Challenges:

• Complexity of the Process: The process of filing a patent can be intricate and involves legal and technical complexities. Navigating the requirements, including the novelty of the invention, adequate descriptions, and legal aspects, can be challenging.
• Costs Involved: Patent filings can be costly, involving fees for filing, examination, and maintenance. Legal assistance is included in the expenses.
• Time-Consuming: Patent application procedures often take time. The process from filing to grant can extend over several years, which might not be suitable for inventions needing immediate protection.
• Patentability Criteria: Meeting the patentability criteria (novelty, inventive step, industrial applicability) can be challenging. Ensuring an invention fulfils these requirements is essential for a successful patent application.
• Disclosure Risks: Filing a patent application requires disclosing detailed information about the invention. This could potentially lead to revealing valuable information to competitors.
  
  Opportunities:

• Monopoly Rights: A patent grants exclusive rights, allowing the inventor to prevent others from making, using, selling, or importing the patented invention without permission. This can be a significant advantage in the market.

• Market Advantage and Commercialization: Patents can create barriers to entry for competitors, providing a competitive advantage. They can be valuable assets for businesses, attracting investors and potential partners for commercialization.

• Licensing and Revenue: Patent holders can license their technology to other entities, generating revenue through royalties or collaborations. Licensing agreements can be a lucrative opportunity.

• International Protection: For global markets, patents offer the chance to seek protection in multiple countries through treaties like the Patent Cooperation Treaty (PCT).

• Innovation Recognition: Having a patented invention provides recognition for innovation, which can boost the reputation of individuals or companies in their respective industries.

• Legal Protection: Patents offer a legal framework to protect against infringement, enabling legal action against unauthorized use of the patented technology.

Understanding these challenges and opportunities is crucial for making informed decisions regarding patent filings. It's advisable to conduct a thorough assessment of the invention, and its market potential, and seek professional advice to navigate the patenting process effectively.

CONCLUSION

As we have discussed before, patents come in different types and there are important facts to consider when registering for a patent. The registration process can be challenging and there are opportunities to be gained as well. It is important to follow the necessary steps, otherwise, the registration of the patent will be rejected. Therefore, it is crucial for anyone who wants to register a patent to follow these steps precisely.