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Conditions for Patentability in India


To secure a patent in India, the inventor must ensure that the invention satisfies specific criteria outlined in the Patent Act of 1970, particularly in Section 3 and Section 4. These sections delineate exceptions that determine what is considered a non-patentable invention. Fulfilling three fundamental conditions is crucial for obtaining a patent.

1. Novelty

The invention must be entirely novel, meaning the inventor should create a unique product that has yet to be previously disclosed or exists elsewhere.

2. Commercial Applicability

The invention should have practical applications in the commercial world, meaning it should be usable for industrial or business purposes.

3. Non-Obviousness

The invention should be made clear to someone skilled in the relevant field. It must represent a significant improvement or innovation compared to existing designs.

Step-by-step procedures to get a patent in India:

The process to obtain a patent in India involves several key steps. It begins with documenting and disclosing your invention, followed by a comprehensive patentability search. Once you’ve drafted a detailed patent application, you can submit it to the Indian Patent Office, undergo examination, and, upon approval, receive the grant of your patent.

1. Determine Patentability:

    • Check if your invention is novel and not obvious.
    • Ensure that it has an industrial application.

2. Conduct a Patent Search:

    • Perform a thorough search to check if a similar innovation already exists.
    • You can accomplish this through the website of the Indian Patent Office.

3. Draft a Patent Application:

    • Prepare a detailed description of your invention.
    • Include drawings, if necessary.
    • Define claims that distinctly point out the design.

4. File the Patent Application:

    • Apply to the Indian Patent Office.
    • Choose the appropriate patent office based on your jurisdiction.

5. Request for Examination:

    • After filing, request an examination within 48 months.
    • The determination of your invention’s Patentability is crucial.

6. Patent Examination:

    • The patent office examines the application for novelty and inventive steps.
    • Respond to any objections raised during the examination.

7. Publication:

    • Once the application is accepted and published in the Patent Office Journal.

8. Opposition (if any):

    • Third parties may oppose the grant within a specific period after publication.

9. Grant of Patent:

    • The patent is granted after overcoming resistance, if any.

10. Renewal:

    • Pay renewal fees to keep the patent in force.

11. Enforcement:

    • You can enforce the granted patent against any infringement.

Navigating the patent process requires careful attention to detail, legal expertise, and adherence to timelines. Seeking professional guidance can enhance the chances of a successful patent application.

Remember, it’s advisable to consult with a patent attorney or agent to navigate through these procedures effectively.

Persons Entitled to Apply for Patent

According to Section 6 of the Patent Act 1970, several categories of individuals or entities have the right to apply for a patent in India:

  1. True and First Inventor: Any person who can demonstrate that they are the true and first inventor of the invention is eligible to apply for a patent.
  2. Assignee: If someone else has the right to make the application, such as an assignee of the faithful and first inventor, they can apply for the patent.
  3. Legal Representative: In cases where the original inventor has passed away but was entitled to apply for a patent before their death, their legal representative can make the application.

Different Types of Patents

In India, applicants can apply for various types of patents, depending on the nature of their invention.

1. Utility Patents

Utility patents are the most common type of patent. They cover new machines, processes, or systems that have practical applications. Innovations like genetic engineering and internet-delivered software often fall under this category.

2. Design Patents

Design patents protect an object’s appearance, surface ornamentation, shape, or configuration. Patent offices grant design patents when the design is integral to the object’s function. If someone wishes to protect an object’s functional or structural aspects, they must apply for a utility patent.

3. Plant Patents

Plant patents safeguard new and distinct plant varieties. To be eligible, a plant must not propagate via tubers, must not exist in an uncultivated state, and must be capable of asexual reproduction.

It’s important to note that, as of now, India does not provide for plant patents. However, you can apply for them in countries like Australia, the USA, and several European nations.

Types of Patent Applications under the Patent Act, 1970

1. Provisional Application

A provisional application is a preliminary filing used to claim priority. Inventors often use this type of application when they need more time to refine their invention. It’s crucial because India follows the ‘First to File’ system, and early filing prevents related designs from becoming prior art.

2. Ordinary or Non-Provisional Application

An ordinary or non-provisional application: The applicant applies. When the applicant does not need to claim priority, the applicant must include a complete specification that details the invention.

3. Convention Application

A convention application is filed in the Indian Patent Office within 12 months of the initial filing in a convention country. It allows applicants to claim priority based on a similar application filed in a convention country.

4. PCT International Application

A PCT (Patent Cooperation Treaty) international application streamlines the patent application process across many countries. This approach is valid in up to 142 countries, simplifying the process for global protection.

5. PCT National Phase Application

The applicant files this application in each country where they wish to seek protection. They must submit it within 30 or 31 months from the priority or international filing date, whichever is earlier.

6. Application for Patent of Addition

When an applicant makes an improvement or modification to an invention already described in the main application, they can file a patent of addition. 

7. Divisional Application

When a patent application claims multiple inventions, the applicant can file divisional applications to separate each creation. The priority date for each divisional application remains the same as that of the parent application.

Remember that the term of a patent for a divisional application is twenty years from the filing date of the main application.

FAQs for Conditions for Patentability in India

1. What is the definition of invention under Indian patent law?

  • An invention is a new product or process involving inventive steps capable of industrial application.

2. What does novelty mean in the context of patentability?

  • Anticipation by prior publication or prior use does not characterize novelty in an invention.

3. How does an inventive step contribute to patentability?

  • The inventive step implies that the invention involves a non-obvious advancement over existing knowledge.

4. What is industrial applicability in the context of patentability?

  • Industrial applicability means the invention can be made or used in any industry.

5. Can software and business methods be patented in India?

  • The patent office or examiner may consider specific applications of these concepts for patentability, although software per se and business methods are generally not patentable.

6. How does prior publication affect patentability?

  • If an inventor discloses the invention in a publication before the filing date, the design may require more significant novelty.

7. What is the grace period for filing a patent application after disclosure?

  • India provides a 12-month grace period for filing after the inventor’s disclosure.

8. Can different inventors patent simultaneous inventions?

  • If multiple inventors independently arrive at the same invention, the patent office may grant a patent to each.

9. How does non-obviousness contribute to inventive steps?

  • Non-obviousness implies that the invention would not be evident to a person skilled in the art.

10. Is there a requirement for a working model during the patent application?

  • Filing a patent application in India generally does not require a working model.

11. Can plant varieties be patented in India?

  • The Protection of Plant Varieties and Farmers’ Rights Act, not patent law, protects plant varieties.

12. How does the patent office assess inventive steps?

  • The patent office considers whether the invention involves an inventive step that could be more obvious to a person skilled in the art.

13. What types of inventions are excluded from patentability?

  • Exclude inventions contrary to law, morality or harmful to humans, animals, or the environment. It is a prerequisite for patentability under India’s Patent Act of 1970.

14. Can medicines and pharmaceuticals be patented in India?

  • Medicines and pharmaceuticals can be patented if they meet the patentability criteria.

15. What is the significance of the “first to file” system in patent law?

  • The “first to file” system awards the patent to the first person to apply, regardless of who invented it first.

G.Durghasree B.A.B.L (Hons)

G Durghasree B.A.B.L (Hons) is a registered trademark attorney with extensive experience as an Advocate for a period of 8 years. She possesses expertise in trademark law, including trademark filing and trademark hearings. Additionally, she is skilled in contract drafting and reviewing, providing legal advice and opinions, particularly in the areas of Company Law, Insolvency and Bankruptcy Code (IBC), and Goods and Service Tax Law (GST). Her experience encompasses both litigation and non-litigation aspects of these laws.