What Are The Criteria For Patenting My Invention?

What Are the Criteria to Patent an invention?

 

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

Online patent filing or patent registration is the first step an inventor takes to protect his/her invention from being misused. Online patent filing in India is a complicated ordeal. However, with the right legal guidance, it can be done easily.  

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

Benefits of Filing a Patent in India

The following are some of the advantages of filing a patent in India:

  • Patents make individuals or companies exclusive owners of the invention or the idea 
  • Patents restrict a company’s competitors from copying, selling, or importing its intellectual property without prior permission 
  • A patent is just like any other intellectual property and can be transferred by the inventor 
  • Patents improve  brand perception and potentially enable your business to charge a premium 
  • Patent owners control the use of the invention for twenty years or longer.
 

Documents Required for Patent Filing in India

  • Application form in duplicate (Form 1) 
  • The 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) 
  • Drawing in duplicate (if necessary) 
  • Abstract of the invention in duplicate 
  • Information & undertaking listing the number, filing date, & current status of each foreign patent application (if such exist) in duplicate (Form 3) 
  • Priority document (if the priority date is claimed) in convention application, when directed by the Controller 
  • Declaration of inventor-ship where the provisional specification is followed by complete specification or in case of convention/PCT national phase application (Form 5) 
  • Power of attorney (if filed through any patent agent) 
  • Fees (to be paid in cash/by cheque/by demand draft).
 

A Step-by-Step Guide to How to Obtain a Patent in India

For online patent registration in India, you must submit the specified forms at the patent office. If you own a Class 3 digital signature certificate (DSC), you can easily submit it online.

In the case of online applications, the patent office will be charging an additional 10% as the fee. The step-by-step process of how to patent your idea or invention/intellectual property is mentioned below:

Step 1: Patent Search

For a successful patent registration, you need to ensure that your invention/idea is non-obvious and unique. Carrying out a patent search will help you to ensure this and also to avoid lengthy official procedures. You can search for yourself or can take professional help from experts. You can also conduct a patent search with the help of experts.

You may skip the below-mentioned steps if you come across a similar patent registered already.

Step 2: 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 drafting a patent specification is a specialized task that can be done best by experienced professionals only.

  • Ideation: Here, you need to pen down the idea or concept, clearly mentioning the key details about the invention and the desired patent. 
  • Visualisation: Visualise your idea and elements in the form of diagrams that explain more about the invention. 
  • Verification and Patentability Search: The next step is to verify whether your invention is patentable as per provisions mentioned in the Indian Patents Act. Your ideas/inventions must meet the patent ability requirements such as:
    • Novelty
    • Non-obviousness
    • Usefulness
    • Patentable subject matter

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 the provisional patent application.

Step 3: Preparation of a Patentability Report

Authorized patent professionals or patent agents will then do extensive research and prepare the patentability report that contains the analyses based on the above-mentioned criteria. You should also attach all the specified documents along with the patent application. Have a thorough check on the documents before submission, to avoid any rejection in the future.

Step 4: Publication of Patent Application

The application is then published in the Patent Journal within 18 months. A request for early filing of the patent application can be made along with a prescribed fee.

Publication of Filed Patent

  • For patent registration in India, the Indian patent office keeps every patent application confidential until it gets officially published in the patent journal 
  • The publication of a filed patent happens automatically after 18 months from filing the applications, and there is no need for 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, immediately after the publication.

Step 5: Patent Examination

There would be a formal submission of a request for the patent examination which must be filed within 48 months from the first filing of the patent (provisional patent or complete patent). If the applicant fails to file within the time frame specified in 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.

Step 6: Patent Objections

It is common for patent applicants to receive objections, like “inconsistent or unclear claims” or “inventions lacking novelty”, etc. Hence, it is mandatory to analyze the patent examination report and draft a proper response to the objections.

Step 7: Grant of Patent

Once all the patent-ability requirements are met, the notification to grant a patent will be published in the patent journal.

 

What Are the Benefits of Filing a Provisional Patent Application Before Filing a 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 stand a good chance of being 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.