Process For Grant of Patent

The process for granting a patent in India under the Patents Act, 1970, includes several key stages:

1. Application:

• Filing: An applicant can file a patent application with one of the patent offices in India. This can be done through a physical filing or increasingly via online submission through the Intellectual Property India (IPIndia) portal.

• Types of Applications:

  • Provisional Application: Allows for an early filing date while giving the applicant up to 12 months to file a complete specification.

  • Complete Application: Includes all details of the invention from the outset.

• Requirements: The application must include:

  • A request for a patent in the prescribed form.

  • A provisional or complete specification in English or Hindi.

  • An abstract detailing the invention’s technical field and purpose.

  • Priority document if claiming priority from an earlier application in another country.

2. Complete Specification:

• Content: Must describe the invention in full detail, including:

  • Title of the invention.

  • Field of invention.

  • Background of the invention, including prior art.

  • Detailed description of the invention with drawings if necessary.

  • Claims defining the scope of protection sought.

  • Abstract.

• Filing: If a provisional specification is filed, a complete specification must be submitted within 12 months; otherwise, the application is deemed abandoned.

3. Examination:

• Request for Examination: The applicant or any interested person can request examination within 48 months from the filing or priority date. If not requested, the application is deemed withdrawn.

• Examination Process:

  • An examiner reviews the application for compliance with the Act, focusing on patentability criteria (novelty, inventiveness, utility).

  • An examination report is issued, which might include objections or requests for clarification.

• Response to Examination: The applicant has 6 months (extendable by 3 months) to respond to objections. If no response is filed, the application is treated as abandoned.

4. Publication:

• Mandatory Publication: Every patent application is published 18 months from the filing or priority date unless early publication is requested by the applicant.

• Public Access: Once published, the application becomes public, allowing third parties to review it.

5. Opposition:

• Pre-Grant Opposition:

  • Can be filed by any person within 6 months from the date of publication or before the grant, whichever is later.

  • Grounds include lack of novelty, obviousness, not being an invention under the Act, or not being patentable under Section 3 or 4.

• Procedure: The Controller will consider the opposition, giving both parties an opportunity to be heard before deciding.

6. Grant:

• Decision: If all objections are overcome or if there’s no opposition, or if after opposition, the decision is in favor of granting the patent, the Controller will notify the applicant.

• Grant and Sealing: Upon payment of the necessary fees, the patent is granted and sealed. The patentee receives a certificate of patent.

• Publication of Grant: The grant is published in the Patent Office Journal, marking the official start of the patent term.

Post-Grant:

• Post-Grant Opposition: Within one year from the date of publication of the grant, a patent can be opposed on similar grounds as pre-grant opposition but with a different procedure.

• Patent Term: The patent is valid for 20 years from the filing date, subject to the payment of annual renewal fees.

• Maintenance: Patentees must renew their patents annually to keep them in force.

This process ensures that only inventions meeting the legal criteria for patentability are granted protection while allowing public scrutiny and opposition to maintain the integrity and fairness of the patent system.