The complete patent process in India takes anywhere between 3 to 5 years and involves a series of steps to be mandatorily followed within prescribed timelines to get a patent in India. Failure to avoid such deadlines can also lead to loss of your patent application.
In this post, we will discuss in detail the procedure for grant of a patent in India along with the tentative timelines involved during the patent process.
Steps involved in the patent process in India
The procedure for obtaining a patent in India starts even before a patent application is filed with the patent office in India.
Step 0 – Decision on doing it yourself or engaging a professional
Before you proceed with the patent application process, you need to decide if you will be using the assistance of a patent professional or undertaking the patent process yourself. Considering the number of deadlines and the impact of these deadlines, it is highly recommended that you engage a patent professional / firm who has years of experience in the patent field.
If you decide to use the services of a professional, then make sure that you sign a Non-Disclosure Agreement (NDA) with the patent professional / firm before disclosing the invention to them. It is a good idea that all your disclosures with any third parties are done confidentially and you sign NDA’s with each party.
Step 1 – Check the Patentability of the invention by performing a search for similar technologies
Before filing a patent application in India or in any other country, the first step (optional but recommended) in the patent registration process is to perform a detailed patentability search to determine the chances of getting a patent. The search should ideally be performed for both patent and non-patent references.
The advantage of a search is it provides a good idea of the merit of the invention and helps in deciding if there are good chances of ultimately getting a patent granted. Furthermore, based on the references (prior art) discovered during the search, you have the option of fine-tuning your patent application to ensure that you don’t end up filing a patent for something which already existed.
Hence, a thorough patentability search is always advised but from a patenting process point of view is totally optional.
If you are thinking of going international with your patent application, spending time and money on the search will be well worth every Rupee.
Step 2 – Drafting a patent application (Provisional or Complete)
Once, you have made up your mind to go forward with the patent application process, the next step is to prepare an Indian patent application (Form 1).
Each patent application has to be mandatorily accompanied by a patent specification (Form 2). Based on the state of the invention, you can either file a provisional patent application or a complete patent application (also known as Non-provisional in some countries).
If the invention is still in the development mode and tests are underway, it is a good idea to quickly file a provisional application to block the all-important filing date. Filing of the provisional application gives you 12 months of time to test and finalize your invention and file the complete application.
Whether filing a provisional or a complete application, extra special attention should be paid to the patent draft included along with the application. The patent draft is your representation in front of the patent office and the decision of the patent office on the grant of the patent will be made based on the draft itself. Hence, not doing a patent draft properly may lead to a patent application which doesn’t get a grant or if granted doesn’t help you stop competitors effectively.
If you are serious about protecting your technology and getting an advantage in the market, it is highly recommended to seek qualified assistance from patent professionals, to ensure that your interests are appropriately protected.
It is best to work with a patent agent with the expertise and experience in working and prosecuting patent applications in your area of technology. Since it may not be very easy to find quality patent professionals for your area of technology, you can seek free assistance from experts at Zatalyst.com in helping you finding quality patent professionals and law firms for each and every patent requirement you may have.
Step 3 – Filing the patent application in India
Patent filing in India can happen in the following scenarios:
- First filing in India – Once the patent application is drafted, the next step is to file the patent application in India and secure the filing date. In case you are filing a provisional application first, you need to file the complete application within 12 months from the provisional filing date.
- Foreign filing decision – Further, if you are interested in protecting your invention in foreign jurisdictions, the maximum time allowed is 12 months from your first filing date. Based on the countries you are interested in; you can opt for filing a convention application in Paris convention members individually in each of the countries you are interested in protecting your invention. Alternatively, you can use the Patent Cooperation Treaty (PCT) system to reserve your right in 140 odd member countries. Both the systems have their pros and cons and the decision of choosing one over other changes based on your requirement and will be the basis of another post.
- Foreign applications entering India – In another scenario where the patent application was first filed in a foreign jurisdiction and the patent applicant is interested in filing a patent application in India under the Paris Convention route or the PCT route, the time limit to enter India is 12 months and 31 months respectively.
Each application for a patent which is filed with the Indian patent office needs to be accompanied by the forms provided below:
- Form 1 – Application for grant of a patent
- Form 2 – Provisional/Complete specification
- Form 3 – Statement and undertaking regarding foreign application under section 8 (only required if a corresponding patent application is filed in another country)
- Form 5 – Declaration as to inventorship (only to be filed along with the complete application)
- Form 26 – Form for authorization of a patent agent (only required if you are using a patent agent to help you file the application)
- Form 28 – To be submitted by startup or small entity (only required if you are claiming startup or small entity status)
- Priority documents – In case you are claiming priority from a foreign patent application and entering India, you may be required to provide the priority document as well.
Step 4 – Publication of patent application
- When is it published? – Every patent application which is filed with the Indian patent office is kept as a secret until the time it is published in the official patent journal. Indian patent office will publish patent applications ordinarily after 18 months. This is an automatic event and you need not make any request. However, if you wish to get your application published earlier, you can make a request for early publication (Form 9) and your application will ordinarily be published within 1 month of the request.
- The advantage of publication – The date of publication is important as your privileges and rights start from the date of publication, although you can’t enforce your rights by way of any infringement proceedings until your patent is granted.
- When not published – It is also important to know that there are a few scenarios under which a patent application may not be published and kept as a secret:
- Secrecy directions have been imposed under the patent act. Secrecy directions are imposed if the invention falls in a category publication of which could be against the interest of the nation.
- A complete application was not filed within 12 months from the date of filing of the provisional application
- A request for withdrawal was made. Such a request has to be made at least 3 months prior to publication. So, for practical purposes, it is 15 months from the date of priority in a standard patent application process.
Step 5 – Examination of the patent application
Every patent application which is filed for protection has to be substantively examined before a patent is finally granted. The examination process is where your patent application will finally be examined on merits of the invention as described and claimed in the patent specification.
Request for Examination
The examination process, unlike publication, doesn’t happen automatically by way of filing of the Indian patent application. The applicant has to specifically make a request for examining their patent application (Form 18). Only when a Request for Examination (RFE) is received, will the application be queued for examination. So, the earlier you make the RFE request, the earlier your application may be examined by the examiner.
If you wish to fast track your patent application even further and jump the examination queue, you can file a request for expedited examination (Form 18A). However, an expedited examination is only available to the applicant if the applicant is either a startup; or the applicant chose the Indian Patent Office as the International Search Authority (ISA) or International Preliminary Examining Authority (IPEA) during their international application (PCT application).
On the contrary, you may sometimes not want to get your application examined early for strategic reasons. Reasons for deferring the request could include extending the patent-pending life, waiting for funding, etc.
Examination process (Objections by examiner & responding to objections)
Once, the Request for Examination has been filed, it will eventually land up on the desk of the examiner from the relevant technology background for examination. During the examination process, the examiner will scrutinize the application to ensure that the application is in accordance with the patent act and rules. The examiner also performs a search to understand similar technologies to ascertain if the invention would satisfy the patentability criteria.
Based on the review of the application, the examiner will issue an Examination Report to the applicant, stating the grounds for objections. The first such examination report is called the First Examination Report (FER).
Once, the FER is issued, the patent applicant needs to successfully overcome the objections to receive a patent grant. The whole process may involve responding to examination reports, appearing for hearing, etc. The total time needed to put an application in order for the grant is 6 months (earlier 12 months) from the date on which the FER is issued to the applicant. However, this 6 month period can be extended for a period of 3 months by the applicant by filing a request for an extension of time (Form 4).
Step 6 – Final decision on grant of patent
Once, the patent application overcomes all the objections, the patent will be granted and published in the patent gazette.
Step 7 – Renewal
After the patent has been granted, it has to be renewed every year by paying the renewal fee. A patent in India can be renewed for a maximum period of 20 years from the patent filing date.
Costs involved during the patent process
Since the patent process can go up to 5 years and involves various options, the pricing may vary based on the actions performed and whether a patent professional or firm was engaged during the process. For a detailed cost analysis, refer to our post on Indian patent fees estimate.
If you are looking for top patent expert law firms in India, you can visit our curated list of premium patent experts here. However, if you have a tight budget, you can consider visiting our partner’s marketplace of patent experts.
If you have any doubts or questions about the patent process in India, feel free to leave a comment and we will try our best to respond to you within 1-2 days.
Would it work in case of an invention to theoretically show it successful than to make the the same in size and shape as I am unable to afford. And also, please inform me about INDIAN success stories of an individual selling patent license to a company and receiving royalty pay…if so what percentage of share that would be?
It is not necessary to make a prototype for filing a patent application. Many patent applications are filed as provisional applications once the basic invention is conceptualized with complete application filed within 12 months with details.
Further, market success doesn’t necessarily mean an invention meets all the patentability criteria for getting a patent. And an invention (or patent) doesn’t necessarily guarantee a market success.
With respect to licensing, unfortunately the data is not that readily available in India. However, the general licensing percentages are in single digits but can vary significantly based on the area of technology, strength of the patent, its importance amongst other factors.
I’m an American filing a patent app in India. Whose address do I use for ADDRESS for SERVICE on Form 1 if I have no agent in India. Also, whose jurisdiction office do I use if I wish to use my invention in the entire state of India? I’ve scoured the WWW looking for answers. Even when I go to New Registration for Online Filing of Patents, its asking for ADDRESS for SERVICE and I’m unable to list my address in the United States.
In order to file a patent application in India, you are required to provide an address in India, which will be used by the Indian patent office for communication by post. If you don’t have a local address, you are required to hire a patent agent, whose address will serve as the address for service in India.
Jurisdiction – There are 4 patent offices in India which process patent applications. However, a patent if granted is applicable across India.
The selection of the correct patent office (jurisdiction) happens based on the address mentioned by you in the application. The following factors are used to decide the jurisdiction:
1. Place of residence, domicile, or business of the applicant.
2. Place where the invention originated.
3. Address for service in India (applicable for foreign applicants with no place of business or domicile in India)
Online filing for foreign applicants – While filing online you should provide an Indian address as the address for service. Based on the address you input the system will automatically determine the correct jurisdiction. Hence, it is important to have an Indian address for communication. If you don’t have an Indian address, you would be required to hire an Indian patent agent so that their address serves as the address for service.
Furthermore, filing a patent application online in India requires a class II / III digital signature. If you are filing a patent application yourself online, you will be required to acquire a applicable digital signature and then use it to digitally sign the application.
Much appreciation for this information!
I am a Homeo Dr. I am successfully using a Homeo medicine for baldness,hair fall of both sex and of all ages, whether it is heridity or any cause.my success rate is almost 100 percent.I can produce hundreds of success cases for proof.Hair will grow on scar resulting from injury or operation, and so many other hair problems.ls it patentable?
I submitted an application form at state patent office ,Sasthra Bhavan , ,pattom,, Trivandrum.They made a patent search and asked me to submit application to national patent office, .Chennai.
I can’t understand which information do you need
@ Dr. Salini,
To file a patent application with the Indian patent office you are required to file a series of forms (please refer to the blog section: “Step 3 – Filing the patent application in India”) which also includes your patent specification. The patent specification will provide details about your invention and will include sections like: title, description, background of invention, drawings, claims, abstract, etc.
We will be happy to assist you further on a call. Kindly share your contact number via an email to [email protected] or call us on the number provided on our contact page: https://www.zatalyst.com/contact/.
I want to know whether it is patentable
As mentioned in our previous message kindly share your contact details to discuss your requirement in detail. We will discuss and guide you on how to determine the patentability of the invention.
Very well explained. Brief and precise information. Good Job guys.
Your kind words are much appreciated.
Useful sir. It is not less than 7 steps of kung-fu to get a patent.
Sir on average how much time would it take to proceed from patent publication to first examination report.
@Dhruval There is no fixed time period.
Generally publication of a patent application happens around 18 months of time. However, a patent application may be examined normally anywhere between 2-4 years if the request for examination has been filed quite early.
Generally, a request for examination can be filed anytime before 48 months from the date of filing (or priority, whichever is earlier). Also, once a request for examination is filed, the patent office queues the application for examination and the time when the examination begins totally depends on the backlog at the patent office (normally within 2-4 years).
So, if you file a request for examination at the earliest, the difference may be a few months (nothing guaranteed) considering the current backlog. However, if you are looking to expedite the patent process, now you have the option of requesting for early publication and expedited examination, both of which help to significantly reduce the patent process timelines.
Also, as per recent news reports, patent applications have been scrutinized and final decisions have been made in less than 2 years overall. Therefore, we are moving towards a faster patent procedure in India.
Is there need to take any permission to sell invented item in market before it is published by patent office.
@Sachin There is no specific permission required to be taken from the Indian Patent Office, if you intend to launch / sell a product in the Indian market. Considering that the patent office requires for a cooling period of 6 weeks before a patent application can be filed abroad to assess if the invention is related to the national security of the country, it may be a good idea to wait for said 6 week period as a precaution.
Also, there is no specific requirement that you have to wait for the patent application to get published before you can sell your products.
However, you may be required to get approvals from relevant regulatory authority before launching a product in the Indian market, if the product is governed by a specific regulatory agency. e.g. if you are planning on launching a medicine, you will need to have regulatory approvals from the drug regulatory authority.
Furthermore, it is also recommended to check before launching a product in any market, if the launch of your product is going to violate any patents. Generally, freedom to operate (FTO) studies are done to evaluate if the launch of your product will violate anyone else’s patent rights and to take appropriate actions before launching the product. FTO studies help to assess the patent risks and come up with risk mitigation strategies to avoid costly legal proceedings later.
Hey I’ve an idea which help to reduce road accidents and empower women’s right a high rate. Can I have the patent for IDEA or do I have to make the device to have the patent??
@Emil To get a patent you need to disclose a specific implementation of an idea. Simply providing the idea without any specific implementation may not be enough to get a patent granted. However, there is no specific need to make a device also.
If you have conceptualized an implementation of the idea and the data you have is enough to satisfy the patent disclosure requirements, you can theoretically have a patent granted even without actually making the device.
Hello sir, I want to inform you that I am a student of final year and I want to apply for patent. But the only concern is money. As I summed up the total expenditure throughout the 5 years of patent procedure, it costs more than Rs. 1.5 lakh. Is there any concession for student? If not, is there any way to reduce the amount. Please suggest.
@Shrishti Yes the overall cost for getting a patent can be quite cost intensive. As mentioned on our Indian patent cost post, the average cost charged by a premium patent firms for entire patent process for individuals and startups is around 1 lakh.
Generally, many of the patent firms in India understand the cost concerns for students and definitely offer concessionary prices for students. I would urge you to check with a few reliable patent firms about the discounts for students.
If you are still concerned about the prices, please send an email to [email protected] with the best offers you have received from different patent firms / professionals and we can try if we can help you with a better price from them or a different patent firm.
Sir,Iam presently at Singapore,I wish to patent my PhD thesis on a plant product.Study was done in the university where I work at Singapore.Can I file indian patent?
Yes, you can file a patent in India. There would be two ways to achieve it:
1) File a patent application in Singapore first. Then file a PCT / convention application and enter India and thereafter prosecute the Indian application till the final decision of grant / refusal.
2) Seek a foreign filing permit from the Singaporean patent office and after receiving the permit, file a patent application directly in India.
PS: You might also want to check the ownership of IP as the university might have a policy regarding IP ownership of research work done in their labs.
PPS: Please consult a patent agent before proceeding.
You have mentioned that to expedite the patent process, the option of requesting for early publication and expedited examination are available, which can significantly reduce the patent process timelines. I am an individual (not startup) who wants to file a patent. Assuming that we pass the examinations, how much time will it take from filling till grant of patent? (I know that the timeline is not guaranteed, but just need an approximate answer)
@Aurobindo There have been instances where the patent applicants have gone through a fast track patent process by requesting for early publication and expedited examination. In these instances, the patent process from filing to grant has moved very quickly with patent grants in around 7 months as well.
Though, such short timelines are possible but it may not happen for all cases. Assuming that you qualify for expedited examination and apply for early publication as well, tentative timelines of receiving a grant should reasonably be around 1-2 years, which is way faster than the regular process timeline.
The primary delay factors include:
– how fast you respond to the examination report,
– does the patent office issue a second examination report,
– does anyone file a pre-grant opposition, etc.
If you seek a fast patent grant, try to file all the requests at the earliest and not take a lot of time especially to respond to the examination report(s). Beyond that you can’t do anything else but wait.