Everything You Need to Know About Obtaining a Patent in India
Gain a competitive edge for your inventions. Understand patentability criteria in India with this comprehensive 3500+ word guide.
Have you created an extraordinary new invention? Are you wondering how to secure exclusive rights for your intellectual property in India?
Obtaining a patent in India can be tricky without understanding the patentability requirements and process.
This extensive guide covers all key aspects of patents in India:
Table of Contents
Let’s start with a brief background on intellectual property rights and patents in India.
Introduction to Patents in India
India has a robust legal framework around intellectual property rights including patents, trademarks, copyrights, and industrial designs.
The Indian Patents Act of 1970, amended in 2002, 2005 and recently in 2022, governs patents in India. This Act outlines the patentability criteria, application process, and rights of patent holders.
According to the Act, a patent gives the creator an exclusive right over the invented product or process for a limited period of 20 years.
This enables the inventor to reap commercial benefits from the innovation by preventing others from copying it.
Patent protection promotes innovation and technology advancement in a country. It enables companies to reap returns on their R&D investments and acts as an incentive to compete on innovations.
However, the patentability criteria are stringent to ensure that trivial innovations do not get patented. An invention has to be substantially innovative and non-obvious to get patent protection.
India aims to balance public interest and preventing evergreening of patents with promoting genuine innovation through its patent regulations.
Having a patented technology or product differentiates you from competitors and attracts investors, apart from safeguarding your exclusive rights.
Objectives of Patent Protection
Before we get into India’s patentability criteria, let us look at why inventors and companies pursue patent protection:
- Monetary gains – Patents enable the inventor to earn from their innovation by preventing others from commercially using it without consent. Licensing or assigning the patent rights can generate significant revenues.
- Exclusive rights – A patent grants the holder the exclusive rights to commercially exploit the patented invention for 20 years. Others need to obtain a license or face infringement penalties.
- Competitive edge – Companies with patented technologies have an edge over competitors who must either license the patent or invest resources into developing alternate technologies.
- Attract investment – A strong patent portfolio demonstrates an innovator’s technical capabilities. Venture capital and equity investors often consider patents as an asset.
- Prevent copying – Patents deter others from copying an invention and eroding the creator’s competitive position. Potential infringers may have to obtain a license or find alternative solutions.
- Enhancing company value – IP portfolios including patents increase a company’s net worth and valuation during acquisitions or public listing.
- Incentivizing innovation – Patent protection fosters a culture of innovation within companies and motivates investment into cutting-edge R&D.
With these benefits in mind, let us look at the process of applying for a patent in India.
Types of Patent Applications in India
Under the Indian Patents Act, you can file for these types of patent applications:
- Ordinary Application – This standard application is for applicants who have not already filed in other countries. You submit details of the invention without claiming priority date.
- Convention Application – If you have first applied for a patent for the same invention in a convention country, you can file this application within 12 months to claim priority.
- PCT International Application – For patenting an invention in multiple countries, you can begin with a single international application under the PCT (Patent Cooperation Treaty).
- PCT National Phase Application – This application enters the national phase when you pursue patent grant in specific PCT member countries like India. The application must be made within 31 months of your priority date.
- Patent of Addition – If you wish to improve or modify your already patented invention, you can apply for a patent of addition.
- Divisional Application – In case your original patent application claims multiple inventions, you can pursue divisional applications for each invention while retaining your priority date.
Thoroughly review the types of applications to determine the right fit for your needs. Our patent filing experts at Filingwala can also guide you on selecting the optimal application strategy.
Now let’s look at the benefits and potential drawbacks of patenting your invention.
Advantages of Obtaining a Patent in India
- 20 years of exclusive rights – Patents enable you to exclude others from commercially exploiting your invention for up to 20 years from the patent application date. This provides adequate time to build your competitive edge.
- Stronger legal position – You can file lawsuits for damages against any entity infringing upon your patented technology. A patent strengthens your legal position.
- Higher valuation – Patents add to your intellectual property assets. This increases the net worth and valuation of your company, making it more lucrative for investors or acquirers.
- Revenue generation – You can earn revenues by licensing the patent rights to interested parties. Assigning the patent can also provide financial gains.
- Competitive edge – Your patented product or process is legally protected from copying. Competitors must innovate with alternate technologies giving you a competitive advantage.
- Attract investors – Securing patents demonstrates your technological innovation capabilities and IP assets. This makes your company appealing to venture capitalists and equity funds providers for financing.
- Incentivizing R&D – Patent protection encourages allocation of resources towards pioneering research leading to new technologies and scientific advances.
However, patents also have some drawbacks:
- High application and maintenance costs – The entire patenting process from drafting to registration involves substantial expense in attorney fees and other charges. Annually renewing patents also costs money.
- No guarantee of success – A patent application can get rejected after you’ve invested significant time and money into it. Even approved patents may not translate into commercial success.
- Geographical limitations – Patent rights are limited to national or regional jurisdictions. You may need to apply for patents in multiple countries.
- Infringement risks – Your patent can still be copied or infringed upon illegally. Defending your IP worldwide requires great effort and expense.
- Disclosure risks – The public disclosure of your invention during the patenting process can enable others to understand and possibly replicate aspects of it.
- Lengthy process – It typically takes 3-5 years for a patent application to result in approval, blocking any enforcement of rights during that period.
Weigh both the advantages and disadvantages before deciding whether to patent your invention in India. Your decision may also depend on how novel and commercially promising the invention is.
Now let’s get into the patentability criteria you must fulfil for approval.
Criteria for Patentability in India
India has stringent eligibility criteria to ensure that patents are only granted for substantive innovations and not frivolous improvements.
For an invention to be patentable under the Indian Patents Act, it must satisfy these three essential criteria:
1. Novelty
Your invention must be new and novel compared to existing knowledge and public domain.
- It should not be anticipated by prior publication or commercial use anywhere in the world.
- You need to demonstrate that no prior art exists disclosing the invention.
- Section 2(1)(l) of the Patents Act explains the novelty requirement for patentability.
- The invention should not form part of public knowledge or public use in any manner before your patent application date. This includes written or oral disclosures, sales, trade or use by others.
- Absolute worldwide novelty is required. Known use of the invention in any geography will invalidate your claim to novelty in India.
Essentially, you must prove your invention has never been known, published, described or used publicly before filing for the patent. It should not resemble existing art in the field.
Absolute novelty is difficult to establish given expanding global information access. Thorough prior art searching before application submission is crucial.
2. Non-Obviousness
Mere novelty is inadequate. Your invention should involve an inventive step compared to existing knowledge in the field.
- It should be non-obvious to an ordinary person skilled in the art. Someone with reasonable skills in that technological field should not be able to easily deduce or derive your invention just by combining existing prior art.
- As per Section 2(1)(ja) of the Patents Act, inventive step means a feature that makes the invention not obvious to a person skilled in the art.
- The test for non-obviousness is whether a technically skilled person would have arrived at the invention by combining previous existing art.
- If the invention can be construed as an obvious permutation, combination or extension of known art, it lacks an inventive step.
- Your application must clearly articulate the problem your invention solves and demonstrate the non-obvious inventive step compared to prevailing knowledge.
- Non-obviousness prevents trivial extensions of existing art from getting patented, thereby improving the quality of patents.
3. Industrial Applicability
Besides novelty and inventiveness, your invention should be capable of industrial application and provide utility.
- It must be technologically feasible and producible on an industrial scale.
- The invention’s practical applicability and potential use in trade or industry must be established.
- Section 2(1)(ac) clarifies that industrial applicability means an invention which can be made or used in an industry.
- The patent application should disclose the practical application of the invention through examples or sound reasoning.
- Frivolous or useless innovations with no industrial or commercial value cannot be patented. The invention’s utility must be proven.
- Scientific theories, purely intellectual principles, aesthetic creations, etc. that cannot be applied in manufacturing do not qualify as inventions as per Indian patent law.
Only innovations that are novel, non-obvious, and industrially applicable are eligible for patents as per sections 2(1) and 3 of the Indian Patents Act.
Besides these primary criteria, you must ensure your invention does not fall under non-patentable subject matter.
Non-Patentable Inventions
Even if an invention satisfies the main criteria, a patent cannot be granted in India if the subject matter falls under these categories:
- Frivolous and mere discovery of scientific principles or formulations
- Algorithms and computer programs per se
- Business methods and mathematical or mental processes
- Literary, dramatic, musical, or artistic works for aesthetics
- Mere discovery of new properties or uses of known substances
- Admixture (simple combinations or mixtures) of known components
- Methods of agriculture and horticulture
- Traditional medicinal knowledge or biological processes for producing plants/animals
- Atomic energy inventions
- Inventions against public order or morality or injurious to human, animal or plant life.
Further, Section 3(d) clarifies that a new form or derivative of a known substance that does not significantly enhance efficacy cannot be patented.
This prevents incremental innovations from getting patented easily, unless the efficacy is substantially improved versus known substances.
India adopted product patents in pharmaceuticals only from 2005. Section 3(d) ensures patent quality by requiring true drug innovation and preventing evergreening of patents through minor chemical variations.
With the criteria and exclusions clear, let us now look at the step-by-step process for obtaining a patent in India.
Patent Application Process in India
Follow these key steps for drafting and submitting your patent application:
Step 1) Invent and Document
- Invent your unique product, technology or process through innovation. Maintain detailed records and evidence during the conception and prototyping stages.
Step 2) Conduct Prior Art Search
- Thoroughly research existing public knowledge, patents and technologies in your field of invention. Analyze similarities or differences to evaluate novelty.
Step 3) Draft Patent Application
- Disclose your invention’s complete details in the application including title, description, claims, drawings, sequence listings, etc. Demonstrate novelty, inventiveness and utility.
Step 4) Submit Application
- File the prescribed forms along with required documents and fees at the appropriate patent office. Engage a patent attorney for expert drafting and filing services.
Step 5) Examination by Patent Office
- The application undergoes formal and substantive examination. Queries may be raised that require timely response.
Step 6) Publication in Patent Office Journal
- If your application succeeds initial examination, it gets published in the journal typically within 18 months of application. Opposition can be filed at this stage.
Step 7) Grant of Patent
- After hearing oppositions, if your application meets all criteria, a Letters Patent is granted with specific claims defining your invention.
Step 8) Commercialize the Invention
- On grant of patent, you can license or assign rights to interested parties, undertake production and sales, or leverage it towards financing for commercialization.
The entire process usually takes 3-5 years from initial filing to grant. Maintain confidentiality before filing the application to avoid disclosing invention details.
Engage an experienced patent attorney or IP firm like Filingwala for end-to-end assistance with documentation, application drafting, submission, office proceedings and patent grant.
Next, let’s look at how an interested party can oppose a published patent application to prevent grant.
Opposing a Patent Application in India
Once an application gets published after 18 months, any person can present a pre-grant opposition on limited grounds:
- Wrongful obtainment – The invention was wrongfully obtained from the opponent prior to application.
- Prior publication – The invention was disclosed in a prior publication before the claimed priority date.
- Public use – The invention was publicly known or used in India before the priority date.
- Obviousness – The invention lacks inventive step and is obvious to experts in that field.
- Section 3 inventions – The subject matter is among non-patentable inventions listed under Section 3.
- Insufficient description – The application does not sufficiently describe the invention to enable reproduction by a skilled person.
- Foreign application – Non-disclosure of the fact that a foreign application exists for the same invention.
- Convention application delay – Failure to apply in India within 12 months from first foreign application.
The opponent must provide supporting evidence like documentation of prior publication or use to validate the grounds for opposition.
If the opposition is accepted as valid by the Controller, the application will get refused. Otherwise, the patent can proceed towards grant after such oppositions are heard and resolved.
With the context of Indian regulations covered, let us look at global patenting practices.
Patent Regimes in Major Countries
Patent law is territorial in nature. The exclusive rights conferred by a patent remain limited to the jurisdiction it is granted in.
Here is a snapshot of patenting timeframes, validity and other aspects across some major economies:
United States of America
- Patent granted for 20 years from application filing date
- Requires worldwide novelty for patentability
- Patent application published typically after 18 months
- Entire process can take approx. 2 – 5 years
- Utility patents, design patents and plant patents
Europe
- European patents are centrally applied for and granted via European Patent Office (EPO)
- Once approved, needs to be validated in designated countries to be effective there
- 20 years validity from filing date
- Novelty, inventive step and industrial applicability requirement
- Oppositions can be filed after grant
United Kingdom
- Patent validity of up to 20 years from filing date
- Demonstrate novelty, inventive step, and industrial applicability
- Oppositions can be made against UK patents within 9 months of grant
China
- Invention patents granted for 20 years from filing date
- Utility model and design patents for shorter terms
- Mandatory disclosure within 6 months of any corresponding foreign patent applications
- Substantive examination done on request after initial filing
Japan
- Patent term of 20 years from filing date
- Voluntary purpose-limited patent system introduced in 2015 for promoting licensing and technology transfer
- Oppositions allowed within 6 months of patent publication
While the criteria are broadly similar worldwide, nuances exist across jurisdictions regarding non-patentable subject matter, demonstration of inventive step, opposition mechanisms, etc.
Consult experienced global IP advisors like Filingwala when seeking multi-country patent protection.
Now let’s examine some noteworthy Indian court rulings regarding patent disputes and infringement cases.
Landmark Judgments on Patentability and Disputes in India
Over the years, Indian courts have passed important judgments interpreting various aspects of patent law and resolving contentious IP disputes.
Here are some landmark cases and implications:
Bajaj Auto Ltd vs TVS Motor Company Ltd (2009)
- Bajaj sued TVS alleging infringement of their patented ‘DTS-i’ engine technology.
- Madras High Court upheld the validity of Bajaj’s patent and restrained TVS from using the infringing technology.
- Prevented unauthorized commercial exploitation of patented inventions. Upholds exclusive rights provided by patent law.
Novartis AG vs Union of India (2013)
- Novartis was denied a patent in India for the anti-cancer drug Glivec by the Indian Patent Office and Intellectual Property Appellate Board (IPAB).
- The Supreme Court ruled that Glivec was a modified form of a known substance without significantly improved efficacy, hence not patentable under Section 3(d) of Indian Patents Act.
- This set a precedent against evergreening and for strict standards of novelty and inventiveness for pharmaceutical patents.
Ericsson vs Micromax (2013)
- Ericsson sued Micromax for infringing its patents over technologies used for 2G and 3G data communications.
- The Delhi High Court imposed an interim royalty rate of the patented technologies used by Micromax, pending final resolution of the infringement claim.
- Reinforced the rights of original patent holders to obtain royalties from licensees and sue infringing parties.
F. Hoffmann-La Roche Ltd. & Anr vs Cipla (2012)
- Cipla launched a generic version of Roche’s patented anti-cancer drug Tarceva in India before the patent expiry.
- Delhi High Court granted an interim injunction restraining Cipla from manufacturing or selling the drug during Roche’s patent term.
- Stressed that patent exclusivity in India must be respected and infringement not permitted except within strict bounds.
These landmark verdicts have interpreted and evolved Indian patent law while resolving high-stakes disputes between innovator and generic drug makers.
Having robust patents helps companies recoup R&D investments and reinvest into further innovation. However, courts do impose high thresholds for true novelty and industrial applicability when granting patents.
Conclusion
- Patents confer powerful IP rights to inventors in India, encouraging R&D and technical advancement. However, stringent eligibility criteria exist to ensure only truly novel and inventive innovations get legal exclusivity as patents.
- Besides demonstrating absolute novelty and inventive step compared to existing knowledge, the invention must have industrial applicability to solve a practical problem or fulfill a commercial need.
- Incremental modifications of known substances are barred from patentability in certain cases to prevent misuse of the system. Provisions also exist for pre-grant opposition by interested parties.
- Inventors and companies should weigh the pros and cons before deciding whether to pursue patent registration in India, which involves considerable time, effort and expense.
- By understanding the patentability criteria, subject matter exclusions, application process and dispute resolution scenarios, innovators can make informed decisions regarding their inventions.
- Seeking professional guidance from specialist IP advisors is recommended when navigating India’s stringent patent regulations.
We hope this comprehensive guide has helped you learn all about patentability requirements and process in India. Please contact the patent experts at Filingwala for any questions or assistance with your patent filing and protection needs.
Frequently Asked Questions
Q. What is the total cost of obtaining a patent in India?
A. The government fee for patent filing and grant is Rs.8,000-25,000 approximately. However, professional charges of attorneys for application drafting, prosecution services and disbursements can run into Rs.40,000-150,000 on average.
Q. Can computer programs and software be patented in India?
A. As per Indian law, computer programs per se are not considered inventions and cannot be patented. However, inventions employing software/code may be patentable if they demonstrate technical advancement.
Q. How is novelty established in India for patenting?
A. There should be no prior publication or public knowledge/use of the invention anywhere globally. Absolute worldwide novelty must be demonstrated through extensive prior art searching.
Q. Can natural substances be patented after isolation and purification?
A. Mere discovery of new properties or purification of known natural substances is not patentable unless significantly enhanced efficacy is demonstrated.
Q. Does India recognize foreign patent applications?
A. India has reciprocal recognition agreements with several countries. Applicants can claim priority in India based on first foreign filing within 12 months under convention status.
Q. What is the difference between Ordinary and Convention patent applications?
A. Ordinary application is filed directly in India without priority claims. Convention Application is filed within 12 months of first applying in a convention country to claim priority.
Q. Can computer implemented business methods be patented?
A. Business methods using computers may be patentable if they solve a technical problem. However, computer programs per se and business methods are excluded under Section 3(k) of the Patents Act.
