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Patent - How to register

The patent system in India is on a 'first-to-file' basis. The grant of patent in India normally takes 4 to 5 years.

Where to file

Office of the Controller General of Patents, Designs and Trade Marks is the appropriate office for filing of a patent application in India.

What to file

A patent application should be accompanied by the provisional or complete specification and drawings (if any). A the complete specification should include the following:
  • Description of the invention and its operation or use and the method by which it is to be performed; and
  • Disclosure of the best method of performing the invention, which is known to the Applicant and for which he is entitled to claim protection; and
    • Claims defining the scope of invention for which protection is claimed; and
    • Abstract to provide technical information on the information; and
    • Statement and undertaking regarding foreign filing details in respect of the same invention; and
    • Declaration as to Inventorship; and
    • Priority document (if it is a convention application); and
    • Power of attorney (if the application is made through a patent agent); and
    • Proof of right to file (if the application is made by the assignee).

Who can file

The Applicant must be an Indian national or a national of a Convention country.
The true and first inventor or his/her assignee or the legal representative of deceased inventor or assignee.
Foreign Applicants who do not having a place of business in India are required to file their patent applications through an Indian patent agent.

Provisional filing

If the application at the time of filing is accompanied by a provisional specification and not a complete specification then the complete specification has to be filed within 12 months from the date of filing of the application. If the complete specification is not filed within this period, the application is deemed to have been abandoned.

Publication

With some exceptions, all of the applications for patent are published in the Patent Office Journal 18 months after the date of filing of the application or the date of priority, whichever is earlier.
The exceptions to this are applications that are prejudicial to the defense of India, applications that are abandoned due to non-filing of a complete specification within 12 months after filing a provisional application or applications, which are withdrawn within 15 months of filing the application.
The publication of the application in the Patent Office Journal includes the date of application, number of application, name and address of Applicant identifying the application, and an abstract.

Examination

Thereafter, within a period of 48 months from the date of the filing of the application, the Applicant or any other interested person may request the Registrar to examine the application.
If no such request is made then the application will be deemed to have been withdrawn and thereafter cannot be revived. Normally the First Examination Report stating the objections/requirements is communicated to the Applicant or his agent on record within 6 months from the date of request for examination or date of publication whichever is later.
The Applicant has to respond to the First Examination Report by amending the application or the complete specification within 12 months from the date of the First Examination Report. In order to seek any clarification, the Controller General may even appoint a hearing. If the objections as cited in the First Examination Report are not complied with or overcome in the aforesaid period, the application is deemed to be abandoned. If the application along with the complete specification is accepted, the same is published in the journal.

Registration

Where the complete specification of the application has been accepted and no opposition has been filed against it or an opposition has been filed and is decided in favor of the Applicant or the application has been accepted by the Controller General, the Applicant shall make a request in the prescribed form that the patent should be granted to him and thereafter the Controller General shall seal the patent with the seal of the Patent Office and the patent shall be entered in the Register of the Patents. The patent is generally granted after 6 months of the date of the publication.

Pre-grant and Post-grant opposition

If an application for a patent has been published, but a patent has not been granted, any person may, in writing, oppose the same by making a representation to the Controller General. The Controller General shall, if requested by the person who is opposing the patent application, appoint a hearing in the matter and dispose of such representation. If the opposition is decided in favor of the Applicant, the patent will be granted and the patent advertised in the Patent Office Journal. Though this provision exists in the Indian patent system but it may result in unwarranted delay in the grant of patent because of some frivolous opposition that is initiated under this provision. The pre-grant opposition is typically decided within 4 months from the date of notice of opposition. There is no appeal from the order of the Controller General in these matters.
Any interested person can also file a post-grant opposition anytime after the grant of the patent, but before the expiry of a period of 1 year from the date of publication of grant of a patent in the Patent Office Journal. After the receipt of notice of any such opposition, the Controller General will constitute an Opposition Board. After receiving the recommendations of the Opposition Board and hearing the patentee and the opponent the Controller General will decide whether to maintain, revoke, or amend the patent.
The time normally taken to decide the opposition proceedings is about 8 months. The order of the Controller General can be appealed before the Intellectual Property Appellant Board.

Revocation of Patent

At any time during the life of a patent, the patent might be revoked by the High Court on the petition of the following persons:
  • Any person interested; or
  • The Central Government by the Appellate Board; or
  • On a counter claim by the defendant in a suit of infringement.
The grounds for revocation as prescribed under The Patents Act, 1970 are as follows:
  • Claimed invention is the subject of prior grant; or
  • Patentee not entitled to the Patent; or
  • A person other than the person who is rightfully entitled to it wrongfully obtained the patent; or
  • Subject of a claim is not an invention; or
  • Invention is lacking in novelty with regard to prior knowledge or prior use; or
  • Invention is obvious or does not involve inventive step having regard to prior knowledge or prior use; or
  • Invention is not useful; or
  • Invention is not sufficiently described; or
  • Claim not clearly defined and not fairly based; or
  • Patent was obtained by false suggestion or representation; or
  • Subject of claims not a patentable invention; or
  • Claimed invention was secretly used before the priority date; or
  • Failure to disclose information regarding Foreign Application; or
  • Non-compliance of secrecy direction; or
  • Leave to amendment of specification obtained by fraud; or
  • Specification wrongly mentioning or not disclosing geographical origin; or
  • Invention is anticipated by traditional knowledge.
Furthermore, a patent can also be revoked in public interest when the Central Government of India is of the opinion that a patent or the mode in which it is exercised is mischievous to the State or prejudicial to the public. In such case, the rights holder is given an opportunity to be heard and thereafter, should the decision to revoke remain in effect, a declaration is published in the official gazette and the patent shall be deemed to be revoked.
The Controller General also has the authority to revoke the patent for "failure to work" the patent. This action for revocation can be initiated by the Central Government or any other interested person after the expiration of 2 years from the date of the order granting the first compulsory license, on the grounds that the patented invention has not been worked in the territory of India, that reasonable requirements of the public with respect to the patented invention has not been satisfied, or that the patented invention is not available to the public at a reasonably affordable price.

Term of a Patent

The term of a patent is 20 years from the date of the application, irrespective of whether it is filed with provisional or complete specification. To keep the patent valid for the term of 20 years a renewal fee has to be paid every year. If the renewal fee is not paid within the prescribed time, the patent will cease to have effect.
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