Patent Registration

- Savio P Xavier
___________________________________________________________________________

A patent, commonly, is a right granted to an enterprise or individual by their government to

prohibit other enterprises or individuals from making, selling or even importing such patented
products/design or process without approval or consent. In India generally a patent
registration is mainly given to an invention.

Patent helps an inventor to protect their invention from being misused by the public. Patent
filing is their primary objective to achieve it. In India, the process of patent filing is a tedious
process but with proper support and guidance it will be easier. This is why it is suggested to
get a consultation from experts from this field before securing a patent.

This process is a tedious process because a rigorous check on the product is done in order to
check whether the product can be recognised as an innovation or novel and industrially
applicable. Due to a lot of advancements in society, the number of inventions are increasing
day by day. India has its own database for intellectual property regulators for an individual to
check if such invention already exists or is similar to the applicant's invention.

Although patent can be filed for an invention, not all inventions can qualify the test laid down
to obtain a patent in India.

Who can File a Patent Application?

An inventor inorder to get a patent for his invention he needs to first file for a patent [as
mentioned before]. Thus, if the inventor should qualify inorder for him to be capable of filing
a patent. For this an inventor either alone or jointly with any other person should follow the
following requirements:
1. The true and first inventor
2. True and first inventor’s assignee
3. The representative of the deceased true and first inventor is his/her assignee.

According to the patent Act, a “person” is any natural person, company or association or
body of individuals or government body, whether incorporated or not. Thus,

1. In case of a partnership firm, a patent application should compulsorily include all the
names of all those people who are personally responsible partners.
2. In case of a proprietorship firm, a patent application should be made in the name of
the sole proprietor of the firm.
According to the Act, an assignee can also be considered to be a natural person or other than
a legal person such as an LLP, Section 8 of Companies Act, an educational institute or even a
government.

Thus, whoever files a patent registration, one should specify the true and first inventor, the
name, address and nationality of the inventor.

What can be patented?

According to the Patent Act, inorder for an invention to be patentable, the said invention must
compulsorily either be a completely new product or the process which involves an inventive
step and can be used in the industry. Inorder for an invention to fulfill paten registration, it
should follow the following conditions.

1. Inventive Step- The invention is question should not be apparent to a skilled person in
the art in light of the prior publication/ document/ knowledge.
2. Novelty- The matter/invention should not be published in India or elsewhere before
filing an application in India.
3. Industrial applicability- The invention should be very useful so that it can be made or
used in the industry.

Section 3 and Section 4 of the Acts specifically specifies a list of exceptions which will not
fall under the definition of invention and hence are non-patentable.

Grounds for rejection of a Patent

● If it is obtained by wrong or fraudulent means.

● If the invention already exists.
● If it is not included among the inventive steps
● If it is not completed within 12 months.\
● If there is no clear and good description of the invention.
● If it is not considered to be an invention based on the subject matters for the
invention.

Types of Patent Registrations in India

1. Provisional Application - This application is filed during the initial stages of the
invention. The main purpose of this is to prevent anyone else from trying the same or
related inventions. Thus making it a temporary application till the time when the
inventor finishes the product. The main purpose for this application is to give more
time for the inventor for the development of their invention.
 2. Non.Provisional or Ordinary Application - This kind of application does not specify
any priority to claim if the application is not filed in pursuance of any preceding
convention application. A complete specification can be filed through:
A. Direct Filing: It is filed in the Indian Patent Office with complete
specifications without filing any corresponding provisional specifications.
B. Subsequent Filing: this is filed with complete specifications along with
corresponding provisional specification and thereby to claim priority from the
filed provisional specification.

3. Convention Application - this application is filed basically to claim a priority date

based on the same or similar application filed in other convention countries.

In order for an applicant to avail the status of the convention, he/she has to apply it to
the Indian Patent Office within a year from the date of the initial filing of a similar
application in the convention countries.

4. PCT International Application - This application only paves the way for the
streamline patent application process in more than one country in one go. This doesn't
mean one would get an international patent through this.
The Patent Cooperation Treaty covers this aspect to which more than 142 countries
are part of. This application basically prevents any inventions from being copied in
other countries.

5. PCT National Application - Such an application is filed by an inventor when he

becomes aware about an invention which is a small modification of the invention that
has already been applied for or already patented by the applicant. This can be done
only if the said invention does not involve any substantive attentive step.

6. Divisional Application - This type of application is filed by an applicant if he chooses

to divide his application and make 2 or more applications if a particular application
claims more than one invention. The date of such applications is the same as that of
the parent application.

Documents Required for Patent Application

Before going through how we can file a patent, we will first see what all documents are
required inorder to do so. Following are the documents necessary for filing a patent
application.

1. Application for grant of patent in form 1

2. Proof of right to file the application from the inventor himself.
3. Provisional/complete specification in form -2
 4. Statement and undertaking under section 8 in Form 3
5. Declaration as to inventorship
6. Power of authority in form 26
7. Applicant’s signature and an appropriate date
8. If application pertains to a biological material obtained from India, submission of the
permission from the National Biodiversity Authority
9. Request for Examination- Form 18
10. Requisite Statutory Fees

How to File Patent Application?

For filing patent registration, one has to follow the following steps, which are as follows:

=> Patent Search

Inorder for a patent registration to be successful, one has to ensure that the said invention is
unique. To ensure this one has to canary out a patent search. This will surely save individual’s
time by avoiding repercussions.

=> Patent Application Filing

This is the most important step. Filling such an application is a hefy task with a lot of
procedures. This is why it is advisable to do this specialised task with the help of an expert.

Advice is very necessary because Drafting such an application needs a lot of skills and it is
by itself an art. If the invention is in early stages, then provisional patent application is the
best option.

=> Preparing Patentability Report

After filling, the professionals or agents will conduct an extensive research and based on it
they will prepare a patentability report. This is the reason why the applicant should keep all
the necessary documents with the application while filling it.

->Publication of Filed Patent

In India, until the patent registration is finally published in the Patent Journal, the Indian
Patent office has the duty to keep all the information regarding the same confidential.
The patent gets published automatically after 18 months from filing the applications, and no
formal request for the same is necessary to be raised.

=> Patent Examination

A formal submission of a request for the patent examination would be created within 48
months of the patent’s first filing. If someone fails to submit it within this prescribed time, the
application will be treated as withdrawn by the patent office. After this a patent prosecution
report is submitted, which basically is the comprehensive investigation by the examiner.

=> Patent Objections

Sometimes objections are received for some applications. In this case a proper response to the
objections should be drafted after carefully analysing the patent examination report.

=> Grant of patent

After properly following all the steps mentioned above, the patent’s notification will be
posted in the Patent Journal.

Where to file a patent application?

A Patent Application is usually filed electronically using Form-1 and provisional/ complete
specification along with the prescribed fee at the patent office. The patent office has a
jurisdiction. It is determined by the following rules:

=> Place of residence, domicile or business of the applicant ( if join applicants, then details of
the first mentioned applicant)
=> Place where the invention originated
=> Address for service in India given by the applicant.

The main Patent offices are located in Mumbai, Delhi, Chennai and Kolkata.

What are the benefits of filing a patent in India?

1. A patent is the best way to encourage more innovations and inventions because
through a patent they become the sole owner of that particular invention/idea.
 2. A patent helps a business by preventing their competitor from copying, selling and so
on without their permission.
3. Just like other properties, a patent can be sold or even licensed.
4. The inventor can also transfer it,
5. The inventor of a patent enjoys exclusive rights of ownership for 20 long years.

Conclusion

Due to the Patent Act, 1970, a lot of inventors have been protected whose innovations have
been very useful for the growth and commerce and technology in India. Even though they
have to go through a hectic process, the end result which is the maximum enjoyment of
monopolistic rights through a patent is the best protection one could get even without his
consent. This means that whoever even if he tries to use such innovations can be sued.