How to Patent an Idea: From Concept to Approval

If a person has an idea and wants no one else to use it in any form, he may use Intellectual property rights, such as trademarks, copyrights, and patents, to protect his idea. He can put reality to his idea by using IPDRS, one of these patents. This blog focuses on what a patent is and how one can patent an idea.

What is a Patent?

The term patent is derived from the Latin term ‘patent,’ which means to lay open. Technically, it means making it available for inspection publically. A patent is a form of intellectual property rights, which in turn promotes innovation amongst the masses.

In this, an inventor of anything is given a right of authority in sovereign form. It is a legal document that protects the inventor’s invention from misuse by any other person. The inventor gets the right to license it further or make it forward to use it, sell it, or make new products using the invention.

People Also Read: What is a Patent of Addition in India?

Who May Apply for a Patent?

There are certain requirements one needs to fulfil in order to apply for a patent in India.

• Any individual or organization can apply for patents.
• The most basic requirement is that the creator of the invention must be the applicant; the inventor plays an important role in the patent application.
• It must be ensured that the patent qualifies all the standards of the Indian Patent Office.
• Research institutions can also provide guidelines for patent research, discoveries, and commercialization of the inventions by the researchers.

People Also Read: Technological Advancements and IP Challenges Under TRIPS

What can be Patented?

To get a product patent in India, one has to fulfil the following conditions:

1.  Novelty:

The first criterion is that the invention must be new. It should not be similar to any of the existing inventions in the society. The invention should be an original idea.

2.  Invention:

It should involve an inventive step and should not be known to a skilled person in a similar field. It should include some sort of technological advancement as well as economic viability.

3.  Utility:

It should be useful in some manner. The invention should have an application in the industry. It should be useful in commercial ways; mere usefulness is not considered enough in the case of a patent.

What Cannot be Patented?

Sections 3 and 4 of The Indian Patents Act 1970 provide the list of those that are not patentable. Some of these are:-

•  Inventions which have no sense or are fictional in a way,
• Violating morality and being a threat to humans in some form
• Discoveries
• Scientific theories
• About agriculture as well as horticulture
• Literary, dramatic, or artistic work
•  Any form of upgradation to an existing invention\

Types of Patents

The various types of patents are:

1.  Utility Patent:

It deals with the patentability of a device, method of system operation, or manufacturing process. It generally focuses on the functional aspects of how a thing works. This patent is generally provided for a term of 20 years.

2.  Design Patent:

It generally focuses on the object’s visual appearance rather than its functionality. It protects the object’s physical design. This patent is generally provided for a term of 20 years.

3.  Plant Patent:

It covers different types of plants that are not developed through seeds but through other methods, like cuttings or asexual methods. This patent is for 20 years.

Types of Patent Application

The types of patent applications can be based on

1. Provisional Application:

The provisional application has to be filed for temporary protection as the product is still in the development stage and does not allow the exclusive right to anybody else. This is basically for one year.

2. Complete Application:

The complete application is filed for full-term protection, which is directly filed or for the replacement  of a provisional patent when it has lapsed

3. Ordinary Patent Application: 

This is applied for patent protection within India.

4. PCT National Phase Patent Application: 

This application allows the applicant to enter the PCT process and get patent protection on the international level.

5. PCT International Patent Application: 

This is the final stage of the PCT process, which is the international application for patent registration.

6. Convention Patent Application: 

It is used to claim a priority based on an earlier application filed in a convention country.

7. Divisional Patent Application: 

It is used to divide an existing patent application into multiple separate applications to secure multiple inventions.

8. Patent of Addition Application: 

It is used to apply for an improvement or modification of an already existing and patented invention.

Advantages of Getting a Patent

Exclusive Rights:

When one secures a patent in India, it gives the owner the exclusive right to use the invention for the term as per the invention, which is generally 20 years. This also protects the invention from exploitation in any form by any other person. This also provides legal protection, and the inventor can be compensated in case of any sort of infringement.

Market Differentiation:

The patent of an invention does not allow the competitors to imitate the invention in any form for the use, if anyone is caught imitating, he shall be punished for the same. There is also a monopoly in the market as only one person can use the invention.

Revenue Rewards:

The patent helps earn revenue from the invention by licensing it to others or, in some cases, selling it. It also helps enhance the value of the business.

Incentive for Innovation:

The patent works as an incentive to inventors, as their invention will be protected and given due credit, and no one else will be able to make revenue from a kit of any sort.

Global protection:

The patent also protects the invention globally. If one inventor patents an invention, it will be given a position worldwide, and no one anywhere in the world can infringe it without any consequences.

Challenges of Getting a Patent

Difficult Eligibility Criteria:

In India, getting a patent requires fulfilling certain eligibility criteria, which poses challenges in some cases of inventions. This process of getting a patent is also lengthy as there can be delays in various stages.

Various Documentation and Technicalities:

To register a patent, one has to go through various technicalities and provide all the documentation; otherwise, the patent will not be registered.

Competition:

There can be chances when certain oppositions can be raised from an opposing party to the inventor regarding who is the actual inventor of the invention.

High Costs:

There are high costs associated with the registration of patents, and not everyone can afford them.

Lack of Awareness:

There are also instances when some people lack awareness of patent registration and usefulness, and even though they get a patent, some of them are not aware of how to enforce a granted patent in the business world.

Complex process:

Patent drafting is a complex process, and not everyone can do it. To get a patent granted, you will require some sort of legal help.

Key Changes in Patent (Amendment) Rules 2024

The Patent (Amendment) Rules 2024 was introduced by the Indian Patent Office (IPO) on March 15, 2024, to streamline the patent application process, reduce various hurdles, and promote innovation. These changes extend benefits to a wider range of applicants. These changes are:

•  The Examination request period has been shortened from a period of 48 months to 31 months.
• The working statements submission is now required once every three years instead of every year submissions.
• A new two-stage system with a preliminary assessment to deter frivolous filings has been started
• The Inventors can apply for a certificate of inventorship which is a formal recognition post-patent grant using Form 8A.
• The grace Period for Patent Applications is  12 months for filing after public disclosure.
• The examination request period has been reduced to 31 months for making changes in filing requests for examination.
• There has been a 10% reduction in Renewal Fee for Early Payment.

Enhancements from Patent (Amendment) Rules 2021

There are various benefits as a result of The Patent (Amendment) Rules, 2021, which are:

• The grants have been granted faster, the time has been reduced from 3-4 years to less than a year.
• The time taken for a grant has been reduced as Small entities, start-ups, and MSMEs can now request expedited examination.
• Substantial fee reductions associated with patent filing and prosecution have been made available to all small entities and start-ups, which in turn helps lower their financial burden. 
• Delays and errors have been reduced, all because of Enhanced digital infrastructure and the increasing use of electronic communication.
• There has been a wider Access to Expedited Examination, thus including more categories of applicants, like women applicants, educational institutes, startups, SMEs, and government entities.
• There has been an 80% Reduction in Fees for educational institutions. A few special provisions and fee reductions have helped encourage academic research and innovation and thus promoted the development of new technologies.

Rules to keep in mind while filing the patent application

• The fees related to the grant of patents and applications related to it are to be paid as per the first schedule.
• In case an application is filed offline, an extra 10% has to be paid.
• The fees payable can be paid in cash in the office or through electronic means, bank draft, or cheque. They are payable to the patent controller. In case of a cheque sent by post, the date should be mentioned as the date it is to be received by the controller.
• If a fee has to be paid in relation to a document, it will be accompanied by the document only.
• If an application is transferred from a natural person to another, the new applicant must pay the difference when requesting the transfer. This is the same in the case of transferring from a small entity to another category or from a large entity to another category.
• If a fee has been paid for the proceeding, it shall not be returned even if the proceeding does not take place.
• If he withdraws the request for examination before the issue of the first statement objection, a refund can be issued in accordance with the First Schedule.
• There is a possibility that any person can make an advance payment and ask the Controller to deduct any fees they owe from the deposit accordingly. 
• Anyone may stop making advance deposits, subject to the Controller’s approval; in that instance, any funds that remain will be refunded.

Documents Required for Filing a Patent Application

The various documents that are required for the patent filing are:-

• Patent Grant Application (Form 1):

This includes preliminary and basic information about the inventor. It also contains personal information, the title of the inventor’s invention, and, in case a patent agent is hired, his details are to be provided. In addition to it, various declarations are to be filed. In the case of a small entity or a start-up, an application can be filed under FORM 28.

• Provisional or Complete Specification (Form 2):

One can provide the specification of the invention under FORM 2. It is possible that the inventor does not have all the details at the time of filing; thus, a provisional specification can be given, which includes the title indicating the subject matter of the invention, drawings, and/or model/ sample illustrating the invention. A complete specification has to be provided within 12 months of filing which includes the description of the invention; best method for performing the invention, a claim defining the scope of the invention for which protection shall be claimed; and also providing a technical know-how of the invention as per section 10(4) of the act.

• Statement and Pledge (FORM 3):

The inventor has to provide a statement with all the details of the application and an undertaking for filing an international patent application. The undertaking would inform the controller of applications filed in relation to the same or similar invention in any country in the world.

• Declaration as to inventorship (FORM 5):

As stated in section 10(6) of the act, the inventors are required to give a declaration stating that they are the inventors of the product.

• Power of attorney (FORM 26):

If an application is being filed by a patent agent, the inventor who assigns the power of attorney to the agent must file a FORM 26. 

How Much Does Patent Procedure in India Cost?

When filing for a patent in India, several government fees must be paid. These fees vary based on the type of applicant, and whether the process is conducted online or offline. Here’s a detailed breakdown of the government patent fees:

• For Individuals and Startups filing fees are ₹1,600 (within 30 pages, 10 claims) for e-filing and 1,750 (within 30 pages, 10 claims) for physical filing
• For Small Entities filing fees are ₹1,600  (within 30 pages, 10 claims) for e-filing and 1,750 (within 30 pages, 10 claims) for physical filing
• For Large Entities filing fees are ₹8,000 (within 30 pages, 10 claims) for e-filing and 8,800 (within 30 pages, 10 claims)
• An additional fee, such as Rs. 160 per extra page and Rs. 320 per extra claim, can be charged for e-filing; Rs. 180 per extra page and Rs. 350 per extra claim can be charged for physical filing.

Online Patent Registration Process in India

Step 1: Application Preparation and Filing

1. Account Creation and Search: Visit the e-filing website for patent applications and create an account. While not mandatory, a patent search can be conducted to check for existing patents similar to your invention. If a professional is hired, this usually takes 5-7 days and generally charges Rs. 12,000 to Rs. 15,000 for performing a patentability search.
2. Application Forms: Draft and submit an application (Form 1) detailing your invention. Attach Form 2 (specification form), which provides a detailed technical description. 
3. Claims and Abstract: Clearly define the aspects of your invention you wish to protect (claims). Include a summary (abstract) and a visual representation (figure) of the invention.
4. Additional Documents:
   • If applicable, attach a statement regarding prior applications outside India.
   • Designate a representative using a power of attorney form.
   • Declare joint inventors if applicable.
5. Fee Payment: Use the online gateway to pay the required filing fees which is rs. 1600 for a Natural person or Start-up, or Small entity or educational institution and Rs. 1800 for Other(s), alone or with Natural person or Start-up or Small entity or educational institution

Step 2: Publication and Opposition (18 Months After Filing)

• The patent application will be published in a journal with relevant details after 18 months.
• A three-month window exists for any third party to file an opposition against your patent application.
• If an opposition is filed, a hearing before the patent controller will determine whether to grant the patent.

Step 3: Examination and Grant (Within 48 Months of Filing)

1. Examination Request: Within 48 months of filing, request an examination of your invention to assess if it meets patentability criteria.
2. First Examination Report: The patent examiner will issue a report with any objections or suggestions for improvement after examining your invention. This is filed under FORM 18. The request for examination of the application for a patent for FORM 18 is Rs. 4000 for a Natural person or Start-up, or Small entity or educational institution and Rs. 20000 for other large entities.
3. Responding to Objections: You have the opportunity to address the objections raised in the report. If the controller finds your response satisfactory, the patent may be granted.

Overall, obtaining a patent in India involves an application preparation and filing stage, followed by publication with potential opposition, and finally, examination and potential grant of the patent.

Offline Patent Registration Process in India

• The patent can be filed offline in the patent offices. The applicant has to visit the office and submit the documents which are required. The first step is to attach a cover that gives the list of documents in an index form showcasing the list. This has to be attached to the application.
• The next step is to provide the specification of the invention, which includes a description of the invention, claims, drawings, and an abstract.
• Along with these, the statement and undertaking for the patent, as well as the power of attorney, has to be submitted. The applicant is also required to fill out Form 5 to provide a declaration of inventorship.
• Then, the statutory fees have to be paid as per the particulars, which are different for natural persons, small entities, or large entities.
• After this, the application must follow the same steps as the online process from steps 2-5, as provided above.

Conclusion

Anyone can have an idea, but converting that idea into something useful takes a lot of effort. The journey of converting an idea into something which can yield future benefits is a long process. To make this process a lot easier, there are professionals who help make your idea a patent, and getting it patented allows no one else to use it except you.

Frequently Asked Questions

Q1. What is a Patent?

Ans1. A patent is a legal instrument that guards against third parties misusing the inventor’s invention.

Q2. What can be Patented?

Ans2. To get a product patent in India, one has to fulfil the following conditions: novelty, invention, and utility.

Q3. What cannot be patented?

Ans3. Sections 3 and 4 of The Indian Patents Act 1970 provide the list that are not patentable. Some of these are  Inventions that have no sense or are fictional in a way, Violating morality, Discoveries, Scientific theories, About agriculture or horticulture or Literary, dramatic, or artistic work

Q4. When was The Patent (Amendment) Rules 2024  introduced?

Ans4. The Patent (Amendment) Rules 2024 was introduced by the Indian Patent Office (IPO) on March 15, 2024.

Q5.Who grants Patent Registration in India?

Ans5. Patent Registration is granted by the Office of the Controller General of Patents, Designs, and Trade Marks under the Indian Patent Act 1970.

Q6.What is the validity of Patent Registration?

Ans6. The patent filing procedure in India extends to 20 years from the date of application. However, if it is a provisional patent, it will lapse within one year from the application date and must be replaced by a complete application before that.

Q7.What is Patent Search?

Ans7.Patent Search is the process of searching if there are any inventions existing in the same field similar to the one for which patent registration is being sought. It is required to analyze the patentability of the invention beforehand.

Q8. What is the time taken in the procedure for the grant of a patent?

Ans8. The patent registration process or procedure for obtaining a patent can take months to complete as it has several stages. At the earliest, it might take from 12 to 48 months if there are minimal objections and opposition to your application.

Q9. When will the patent application be published in a journal?

Ans9. The patent application will be published in a journal with relevant details after 18 months.

Q10. What is the grace period for patent applications as per The Patent (Amendment) Rules 2024?

Ans10. The grace Period for Patent Applications is  12 months for filing after public disclosure.