Complete Guide on Patent Application

The patent is the approach of preserving intellectual property by acquiring an absolute right over an invention. The invention should provide a new technical way or process of taking action regarding a product. The Patent Application is published in the Official Journal of the Patent Office after the expiry of eighteen months from the date of applying or the date of priority, whichever is earlier.

What is a patent application?

To define the patent application, it can be emphasized as the process of securing an invention. The patent is preserving intellectual property by acquiring an absolute right over an invention. The invention should provide a new technical way or process of taking action regarding a product.

Through the initiative of the patent filing, the applicant plans to prevent others from making, using, or selling such inventions (apart from the patent holder). Section 11 A of the Patents Act, 1970 (hereinafter referred to as "the Act"), along with Rule 24 of the Patents Rules, 2003, provides for Patent application Publication.

What is the procedure of publication for applying for a patent?

The Patent Application is published after the expiry of eighteen months from (a) the date of applying or (b) the date of priority, whichever is earlier.

Within one month from the date of expiry of the period mentioned above, the patent application is published in the Official Journal by the Patent Office.

Patents cannot be published after the expiration period is over under the following circumstances:

  • This happens when the Controller directs them to keep it a secret, according to section 35 of the Act.
  • Wherein complete specifications were not filed within 12 months from the date of filing of Provisional Specification, and the application becomes abandoned as per section 9 (1) of the Act.
  • If a patent application is withdrawn before the end of the 15th month from the date of filing, or priority date, whichever is earlier.

In cases where secrecy directions have been issued, the patent application will be published as:

(a) After expiry of eighteen months from the date of filing or date of priority, whichever is earlier, or

(b)When the secrecy direction ceases to operate, whichever is later.

The published application provides the following details:

  • Number of Patent Applications
  • Name of the Country
  • Name and address of the applicant
  • Name of the inventor(s)
  • Date of filing and Publication date
  • Invention title
  • Classification of International Patent 
  • Provide details like priority document number, priority date, priority country, international application number, filing date, and other priority details.
  • Reference in respect of Patent of Addition shall be the main application's application number and filing date.
  • Reference in respect of Divisional Application shall be the application number and filing date of the first-mentioned application.
  • Abstract
  • Number of claims
  • Number of pages

What are the types of Patents in India?

The types of patent applications in India are as follows:

Type One: Domestic Patent System
  • Provisional Patent: A provisional application is a non-final application filed for an invention that has not yet evolved. It is useful only in the nations that follow the first-to-file system. Early filing of the application stops any additional application from evolving prior art to your patent application and also gives a moment to complete any additional expansion in the invention. A non-provisional application is mostly followed after provisional application within 12 months of the former, or you might lose the early filing date and possibly any right over the invention.

  • Ordinary Patent Application: It is a type of application that is filed with the patent office without claiming any priority date. The date on which the application is filed is considered the beginning of the timeline of an application. The drafting of specifications in such an application needs to be meticulous and should begin with the title of the invention, drawings, claims, and summary of the invention.
  • Additional Patent: After a patent is granted, there is always a scope of improvement in an application. Hence, must make modifications to enhance an invention's ordinary process.
  • Divisional Application: As the name suggests, a divisional application is where patent applications are divided from one another as a patent can only be granted for a single invention. The division is mostly done when the examiner finds that the application contains more than one invention with inventive step and hence separate application is to be filed.

Type Two: International Patent System

  • PCT Application: A PCT application acts similarly to a provisional patent application as it secures a priority date and future right to apply national patent application in any contracting state. The applicant has a time limit of 30 months for filing a national phase application. Patent Cooperation Treaty (PCT) assists applicants in making a more informed choice based on the International search report and International preliminary examination report.
  • Convention Application: If an applicant files a patent application in the countries that have ratified Paris Convention Treaty, it is known as Convention Application. It can be filed with the patent office within 12 months of the priority date.

Is it possible to amend the patent application?

Yes, an applicant can amend a patent application in the following circumstances:
  • When the Controller thinks that the application made does not meet the requirements of the Act, he may ask the applicant to amend the application as per his satisfaction. (Sec. 15 of the Patents Act 1970)

  • It is possible if the applicant makes an application before the grant of the patent to postpone the date of the application. However, such a date cannot be postponed to a date later than 6 months from when the application was actually filed. (Sec. 17)

  • However, upon an application made by the applicant to amend the application, such amendment must be within the restrictions set out in Section 59 of the Act. (Sec. 57)

  • In case of patent revocation, the applicant may amend his application to the satisfaction of the High Court or the Appellate Board, as may be required. (Sec. 58)

  • The Controller has the power to amend the application to correct any clerical errors. However, this power can be exercised only upon an application by the applicant or any other interested party and not suo moto. (Sec. 75)

What is the benefit of the patent application being published?

From the date of publication to the date of patent grant, the applicant can enjoy the privileges and rights like the patent was granted. 

But, the applicant cannot initiate the legal procedure for infringement until the patent has been officially granted.

After the application is published, the Patent Office makes the specification, abstract, drawings, and any other documents regarding the application filed available to the public.

Such information shall be made available on the website, and copies can also be provided for payment of the fee as specified.

Patent registration is a complex process and it is important to have expert advice before applying for the same. To know more visit QuickCompany.

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