Question Answer

Indian Patent System: Key Features, Process, and Patentability

The Indian Patent System protects new inventions and encourages innovation. It is governed by the Patents Act, 1970 and the Patents Rules (as amended). The system is administered by the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), with patent offices in Delhi, Mumbai, Chennai, and Kolkata.

What Is a Patent?

A patent is an exclusive right granted for an invention—a product or process that offers a new technical solution or a practical way to do something. It lets the patentee stop others from making, using, selling, or importing the invention in India without permission, for a limited period.

Legal Framework and International Alignment

• Primary law: Patents Act, 1970 and Patents Rules.
• India is TRIPS-compliant and a member of the Paris Convention and the Patent Cooperation Treaty (PCT).
• Product patents are available across sectors, including pharmaceuticals and chemicals.

Patentability Criteria in India

• Novelty: The invention must be new (not publicly known or published anywhere in the world before the filing/priority date).
• Inventive Step (Non-obviousness): It must involve a technical advance or economic significance that is not obvious to a skilled person.
• Industrial Applicability: It should be capable of being made or used in an industry.
• Sufficient Disclosure: The specification must clearly describe the invention and how to perform it.

What Cannot Be Patented in India (Illustrative)

• Mere discoveries, scientific theories, or mathematical methods.
• Business methods, algorithms, and computer programs per se (without a technical application or technical effect).
• Aesthetic creations; methods of playing games.
• Methods of treatment (diagnostic, therapeutic, surgical) for humans or animals.
• Plants and animals (other than microorganisms), and essentially biological processes.
• Mere admixtures, arrangements/duplications of known devices without synergy.
• Inventions contrary to public order or morality, and inventions relating to atomic energy.
• Traditional knowledge or new uses of a known substance without enhanced efficacy.

Types of Patent Applications

• Provisional Application: Early filing to secure a priority date when the invention is still evolving; must be followed by a Complete Specification within the prescribed time.
• Complete Specification: Full description with claims, drawings, and best method.
• Ordinary Application: Filed directly in India without claiming foreign priority.
• Convention Application: Filed in India within the permitted time after filing in a Paris Convention country.
• PCT National Phase: Entry into India based on an international PCT application.
• Divisional Application: Splits from an earlier application when multiple inventions are disclosed.
• Patent of Addition: For improvements or modifications of an existing patented invention by the same applicant.

Patent Filing Process in India (Step-by-Step)

1. Prior Art Search: Check existing patents and publications to assess novelty and inventive step.
2. Drafting: Prepare Provisional or Complete Specification (claims, description, drawings, abstract).
3. Filing: Submit application with forms and fees (individual/startup/MSME enjoy reduced fees).
4. Publication: Automatic publication after a statutory period from priority/filing date, or request early publication.
5. Examination Request: File a Request for Examination (RFE) within the statutory time limit.
6. Examination & Office Action: Controller issues a First Examination Report (FER). Respond to objections within the allowed timeline; hearings may be scheduled.
7. Opposition: Pre-grant opposition (after publication, before grant) and post-grant opposition (within a limited time after grant) are available.
8. Grant: If objections are overcome, the patent is granted and published in the Patent Journal.
9. Maintenance: Pay renewal (annuity) fees yearly to keep the patent in force; file working statements as required.

Term and Rights

• Term: 20 years from the filing date (or international filing date for PCT national phase).
• Rights: Exclusive right to prevent third parties from making, using, selling, offering for sale, or importing the patented invention in India.
• Territorial: Protection is limited to India; file in other countries for global coverage (e.g., via PCT).
• Exceptions: Research/experimental use, regulatory use (Bolar exception), and certain parallel imports.

Computer-Related Inventions (CRIs) — Important for CSE Students

• Software “per se” is not patentable. Claims must show a technical effect or technical contribution (e.g., improved processing speed, reduced memory usage, enhanced security, better networking performance).
• Draft claims that tie software to hardware or a technical process, demonstrating how the invention solves a technical problem.
• Pure business methods, abstract algorithms, and UI layouts without technical advancement are typically excluded.

Compulsory Licensing and Public Interest

• After a set period from grant, a compulsory licence may be sought if public requirements are not met, the invention is not available at a reasonable price, or the invention is not worked in India.
• Licences can also be allowed during national emergencies or public health needs, balancing innovation with access.

Infringement and Remedies

• Infringement: Unauthorized making, using, selling, or importing of the patented invention within India.
• Remedies: Injunctions, damages or account of profits, delivery-up of infringing goods, and court orders for search/seizure.
• Defences: Non-infringement, invalidity, research use, and regulatory use exceptions.

Practical Tips for Students and Startups

• Do not publicly disclose your invention before filing; use NDAs during discussions.
• Keep detailed lab notes, prototypes, and test data to support inventiveness and enablement.
• Consider filing a Provisional to secure an early date, then follow with a Complete Specification.
• Use PCT to keep options open for multiple countries while deferring costs.
• Check eligibility for fee reductions and expedited examination (e.g., startups, MSMEs, certain categories of applicants).

Quick Snapshot

• Authority: CGPDTM; Patent Offices at Delhi, Mumbai, Chennai, Kolkata.
• Law: Patents Act, 1970; TRIPS-compliant.
• Criteria: Novelty, inventive step, industrial applicability.
• Term: 20 years; renewal fees required.
• Exclusions: Software per se, business methods, medical methods, plants/animals (except microorganisms), traditional knowledge, and others.
• Process: File → Publish → Examine → Oppose (if any) → Grant → Maintain.