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ABSTRACT: A patent is one of the forms of intellectual property.

The object of patent law is to

encourage scientific research, new technology and industrial progress. The grant of exclusive
privilege to own, use or sell the method or product patented for a limited period, stimulates new
inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the
invention at the patent office, which after the expiry of the period of monopoly, passes into public
domain. An invention which must be new and useful. It must have novelty and utility. The patents
are granted to encourage inventions and to secure that the inventions are worked in India on a
commercial scale and to the fullest extent that is reasonable practicable without undue delay. So
true inventor required to know how to get patent in india and other countries through his self or
legal representative. Without patent no one use, sell, and research on invention.This review looks
into procedure to obtain patent in india.
INTRODUCTION:- Intellectual Property refers to creation of mind i.e. inventions, industrial designs
for article, literary & artistic work, symbols etc. used in commerce. Intellectual property is divided
into two categories: industrial property, which includes inventions (patents), trademarks, industrial
designs, and geographic indications of source: and Copyright, which includes literary and artistic
works such as novels, poems, plays, films and musical works etc. According to the TRIPS Agreement,
the intellectual property has been classified into-Patents, Industrial Designs, Trade Marks, Copyright,
Geographical Indications, Layout Designs of Integrated Circuits, and Protection of Undisclosed
Information/Trade Secrets. Different IP Rights vary in the protection they provide.
A Patent is an intellectual property right relating to inventions and is the grant of exclusive right, for
limited period, provided by the Government to the patentee, in exchange of full disclosure of his
invention, for excluding others, from making, using, selling, importing the patented product or
process producing that product for those purposes. The purpose of this system is to encourage
inventions by promoting their protection and utilization so as to contribute to the development of
industries, which in turn, contributes to the promotion of technological innovation and to the
transfer and dissemination of technology. Under the system, Patents ensure property rights (legal
title) for the invention for which patent have been granted, which may be extremely valuable to an
individual or a Company. One should make the fullest possible use of the Patent System and the
benefits it provides. Patent right is territorial in nature and a patent obtained in one country is not
enforceable in other country. The inventors/their assignees are required to file separate patent
applications in different countries for obtaining the patent in that country.
LEGISLATION: The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as
amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the
Patents (Amendment) Rules 2006 effective from 05-05-2006.
The Controller of Patents is the principal officer responsible for administering the patent system in
India. The Controller is the overall supervisor of the four Patent Offices in Chennai, Delhi, Mumbai
and Kolkata. Since the Controller also acts as the Registrar of Trademarks with the Head Office of
Trade Marks in Mumbai the Controller of Patents functions from his office in Mumbai. Officially, the
Head Office of Patents is in Kolkata (Calcutta). The Examiners of Patents appointed under the
Patents Act and other officers of the Patent Office discharge their functions under the direction of
the Controller.
The hierarchy of the officers at the Patent Office is illustrated below:
Figure 1: The hierarchy of the officers at the Patent Office
India is a member-state of Word Intellectual Property Organisation (WIPO), an International
Organisation, responsible for the promotion of the protection of intellectual property throughout
the world. India is a member of the following International Organisations and Treaties in respect of
World Trade Organization (WTO) with effect from 01-01 -1995.
Convention establishing World Intellectual Property Organisation, (WIPO).
Paris Convention for the protection of Industrial Property with effect from Dec.7, 1998.
Patent Co-operation Treaty (PCT) with effect from Dec.7, 1998.
Budapest Treaty with effect from 17th December, 2001. 2

Ordinary Patent Application
It is a simple application for patent without any priority claim and not being convention or National
Phase Application. It should be accompanied by a provisional or complete specification at the time
of filing.
*Divisional Application
In case of plurality of inventions disclosed in the main application Patent of Addition Which may be
filed subsequent to the Filing of an Application for Patent, for an improvement or modification.
*Convention Application
An applicant who files an application (.basic application.) for patent in a convention country can
make convention application in India within 12 months from the date of basic application.2
An application for a patent for an invention may be made by any of the following persons either
alone or jointly with another
True and first Inventor
His/her assignee
Legal representative of deceased inventor or assignee.2

A new product or process involving in an inventive step and capable of being made or used in an
industry. It means the invention to be patentable should be technical in nature and should meet the
following criteria
Novelty: The matter disclosed in the specification is not published in India or elsewhere before
the date of filing of the patent application in India.
Inventive Step: The invention is not obvious to a person skilled in the art in the light of the
prior publication/knowledge/ document.
Industrially applicable: Invention should possess utility, so that it can be made or used in a

A patent application shall be filed on Form-1 along with Provisional / Complete Specification, with
the prescribed fee as given in First Schedule at an appropriate office. However, a provisional
specification cannot be filed in case of a Convention Application (either directly or through PCT
routes). Normal fee shall be applicable for applications containing upto thirty pages in specification
and upto 10 claims. If the specification exceeds thirty pages or claims are more than ten in number,
additional fee as given in First Schedule is payable.3, 6,7
Provisional Specification
The Specification (provisional or complete) is to be submitted in Form-2 along with the Application in
Form-1 and other documents, in duplicate, along with the prescribed fee as given in the First
Schedule. The first page of the Form 2 shall contain:
Title of the invention;
Name, address and nationality of each of the applicants for the Patent; and
Preamble to the description. A Provisional Specification is not a rough draft or a skeleton of the
Complete Specification. The Complete Specification, which follows a Provisional Specification, does
not replace the latter. Both are permanent and separate documents and remain so in the file.3,6,7
Complete Specification
The main objective of complete specification is that it should enable a person skilled in the art to
make the invention. The Manual on Patent Procedures, 2005 specifies that a complete specification
should contain:
Field of Invention
State of art in the field
Object of invention
Statement of Invention
Detailed description of the invention with reference to the drawings
Scope and ambit of the invention
Claims, and
1. An Application for Patent is not open to public before the expiry of 18 months from the date of
filing or date of priority, whichever is earlier.
2. At the end of 18 months period from the date of filing or from the date of priority whichever is
3. In cases, where a secrecy direction has been given, the Application is published, when the secrecy
direction is revoked subject to the expiry of the 18- month period.
4. No application will be published unless a power of authority, if applicable, is filed.

Early Publication
A request for early publication may be made in Form-9 with the prescribed fee of Rs.2,500/-
for natural person(s) or Rs.10,000 for legal entity other than natural person(s).
The request for early publication will be considered if it does not pertain to subject matter
relevant for defence or atomic energy.
Where a request under (a) above is made, the application is published within one month from the
date of such request.3,6,7

An Application for a Patent will not be examined unless the applicant or any other person
interested makes a request for examination. The request is to be filed in Form 18 with the fee as
prescribed in First Schedule.
A request for examination has to be made within forty eight months from the date of priority of
the application or from the date of filing of the application, whichever is earlier. If no such request
for examination is filed within the prescribed time limit, the application shall be treated as
withdrawn by the applicant.
The Office will not examine an application unless it is published and a request for examination is
When a request for examination is filed by a person interested other than the applicant, the
Examination Report is sent to the applicant only, and intimation is given to the person interested.

1. Once a request for examination is received, and the application is published under section 11A,
the application is taken up for Examination in the chronological order of filing of request for
2. When an application is referred by the Controller, the Examiner makes a report on the
patentability as well as other matters ordinarily within one month but not exceeding three months
from the date of such reference.3, 6, 7.

First Examination Report
Upon receiving a request for examination (RFE), the Controller shall task an examiner with preparing
a First Examination Report (FER).The examiner has to prepare the FER within about one month and
not more than three months from the date of application. The Controller shall dispose of the
examiners report ordinarily within a month from the date of receipt. The FER, along with application
and specification, shall be sent to the applicant within a period of six months from the date of
request for examination or from the date of publication, whichever is later and an intimation of such
examination is to be made to the interested person if he or she had filed RFE.3,6,7

Putting Application in Order for Grant
If certain objections are stated in the report of the examiner, the applicant has a time span of twelve
months to put the application in order for grant. The applicant has the option of either amending the
application or complete specification as the case may be or by raising arguments. If the applicant is
not able to comply within the time stipulated, the application is deemed to have been abandoned.

Where an application for a patent has been published but a patent has not been granted, any person
may, in writing represent by way of opposition to the Controller against the grant of any Patent. The
representation shall be filed at the appropriate office and shall include a statement and evidence, if
any, in support of the representation and a request for hearing if so desired.
When all the requirements of the FER are met or in case of opposition under section 25(1),if the
opposition is decided in favour of the applicant ,the patent is granted, after 6 months from the date
of publication under section 11 A, the letter patent is issued, entry is made in the register of patents
and it is notified in the Patent Office, Journal, thereafter opening the application ,specification and
other related documents for public inspection on payment of prescribed fee.3
Term of every patent will be 20 years from the date of filing of patent application, irrespective of
whether it is filled with provisional or complete specification. Date of patent is the date on which the
application for patent is filed.
Any interested person can file notice of opposition (along with written statement and evidence, if
any) any time after the grant of Patent but before the expiry of a period of one year from the date of
publication of grant of a Patent in the Patent Office Journal .The above notice under Section 25(2)
shall be filed on Form-7 along with a fee of Rs. 1500/ or Rs. 6000/- for natural person and other than
natural person respectively, in duplicate at the appropriate office. The grounds of opposition under
section 25 (2) are the same as given before in case of pre grant opposition. The post grant opposition
is decided by an Opposition Board followed by a hearing and the reasoned decision by the
Where a patent covers a product, the grant of patent gives the patentee the exclusive right to
prevent others from performing, without authorization, the act of making, using, offering for sale,
selling or importing that product for the above purpose.
Where a patent covers a process, the patentee has the exclusive right to exclude others from
performing, without his authorization, the act of using that process, using and offering for sale,
selling or importing for those purposes, the product obtained directly by that process in India. These
rights created by statute are circumscribed by various conditions and limitations as provided in the
Patents Act, 1970 as amended by The Patents (amendment) Act, 2002.3

The Register of Patents is kept in the Patent offices and can be inspected or extract from it can be
obtained on payment of prescribed fee. Register of Patent contains the name and address of the
patentee, notification of assignment etc., particulars in respect of validity or proprietorship of patent
and payment of renewal fee.3

To keep the patent in force, Renewal fee is to be paid every year. The first renewal fee is payable for
the third year and must be paid before the expiration of the second year from the date of patent If
the patent has not been granted within two years the renewal fees may be accumulated and paid
immediately after the patent is granted, or within three months of its record in Register of Patents
or within extended period of 9 months ,by paying extension fees of six month on Form 4, from the
date of recorded. If the renewal fee is not paid within the prescribed time, the patent will cease to
have effect. However, provision to restore the patent is possible provided application is made within
eighteen months from the date of cessation.
Renewal fee is counted from the date of filing of the Patent application. Six month's grace time is
available with extension fee for payment of renewal fee. No renewal fees is payable on Patents of
Addition, unless the original patent is revoked and if the Patent of Addition is converted into an
independent patent; renewal fee, then, becomes payable for the remainder of the term of the main
Application for restoration of a patent that lapses due to non-payment of renewal fees must be
made within 18 months of lapse. The application is to be filed in the appropriate office according to
the jurisdiction.3

Encouragement, inducement and reward are the main factor helps the patent system. It encourages
research and invention. It induces an inventor to disclose his discoveries instead of keeping them a
secret. It offers a reward for the expense of developing inventions. Thus the presence of a strong
and effective patent system may bring numerous benefits such as the distribution of information
and providing a motivation to invest in the development of new products and process which will
eventually help to the human being.

1. Bare Act, 2006. The Patent act, 1970 (39 of 1970) the patent (Amendment) Act, 2005 (15 of
2005) along with the patents Rules, 2003 as amended by the patents (amendment) rules, 2005(1st
January, 2005). New delhi: Universal law publishing co. Pvt. Ltd.
2. India Juris. Patent & trade mark guide in india. New delhi: India Juris -Advocates & Corporate
Legal Consultants Trade Mark & Patent Attorneys. Available from: