How to Patent an Idea?

It is important to learn how to patent an idea so as to make sure that you own as well as use your intellectual property exclusively.

A patent is a broad-ranging form of intellectual property protection. It encloses protection not only for machines or products invented but also for certain process and ideas as well.

With the rapid innovation that we currently witness, the question of the patent protection process is raised in every sector of our economy. With the onset of 'modern-aged'  technological revolution, patents are the most sought-after intellectual property protection for inventors.

How to Obtain Patent for your Idea?

Learning how to patent an idea is an important step towards taking your idea or concept towards invention. The inventor must follow the following steps to protect their ingenious idea:

Step 1: Determine the eligibility of your idea for Patent protection

A patent is considered both a sword and shield for an inventor. A grant of patent helps the inventor or the owner of the invention to reap the benefits of their hard work.

Unlike trademark and copyright, for a patent registration, the invention needs to be 'useful'.

The Indian Patents Act, 1970, has prescribed what inventions do not receive patent protection under Section 3.

  • Software and Business methods

Any invention that just constitutes software or business method and does not include anything that is technical in nature is not patentable under Indian Patents Act.

Software per se are not patentable, but if the technical applicability of the software is claimed along with a hardware, a patent can be obtained for the invention.

 

Also Read: Software Patent: Is it possible to Patent an Algorithm?

 

  • Medical Methods

The medical method by themselves are not patentable, but surgical pieces of equipment and products, such as medicines and vaccines can obtain patent along with the method involved.

Since medical process and method involve interference with the human and animal life special precautions are required, and hence Indian patent act has excluded a medical method from patent protection.

Section 3 excludes only the method from patent protection; medical products can still attain patent protection.

  • Morality

Inventions which are considered contrary to the public order or morality are not granted patent protection. The Indian Patents Office regularly cites morality as a ground for rejection when they examine the patent application.

According to the Indian Patents Act, an invention will not be considered patentable if:

  • If the primary use of the invention is immoral
  • If the intended use of the invention is immoral
  • If the commercial use of the invention is immoral

Most rejection is faced by sexual simulation aids and methods.

Example: Recent patent application for a sexual toy by a Canadian company 'Standard Innovation Corporation' was rejected by the Indian Patent Office on the grounds of morality stating that the claimed subject matter relates to sexual stimulation and hence is against the public order.

Step 2: Keep complete step-by-step progress of how you came up with the idea

Inventors are always recommended to keep a record on the progress they made on their idea. The journal of progress will eventually help the inventor in his creative process and also help in implementing or including any improvements before he can file a patent application.

Always include the date and time of the records made in that journal, this helps in the creative process.

Step 3: Adjudge your eligibility for filing the patent

A patent application can be filed only in the name of the actual inventor and the co-inventor.

  • Even if the inventor is employed by a company, the creator of the invention will be considered as the inventor while filing the patent application.
  • The co-inventor must be listed as the inventor in the patent application.
  • If you are just a financial contributor to the invention then, in that case, you cannot be listed as the inventor and neither can you file a patent application.

The law also prescribes that other people (chart)

  • The inventor has assigned another person
  • Legal representatives or heirs

Step 4: Conduct a complete Patent Search

Ideas or inventions that have previously attained patent protection cannot be patented again for a different application. An invention needs to be novel for it to obtain a patent. This means that the invention should not be published anywhere around the world and neither should it be discussed in any of the forums.

Therefore, you should always conduct at least some preliminary searches for your idea. The inventor in such case can opt for conducting a simple search on the internet or a full-blown search conducted by a patent professional.

Also Read: Patent Search

Step 5: Ascertain the type of Patent you need

The patent application in India and certain other countries can be filed in two steps:

  • Provisional Application

Provisional application filed with the patent office does not require to be a fully drafted application as it is not examined by the examiner. A provisional application is filed just to save the date.

Thus, you can take time and develop your idea further, or if you want to sell your idea to a company without worrying about them ripping you off, you could go for the provisional patent application.

  • Complete Specification

The inventor has to file a complete specification with the patent office, and if he is unable to do so the patent application will be considered abandoned, and the invention falls into the public domain.

The inventor has to file a complete specification with the patent office within 12 months of provisional application.

Types of Patent
 

  • Utility Patent

A utility patent is obtained for inventions which have minor improvements or are made by using an improved method or material. But, India is one such country which does not offer protection for such inventions.

  • Design Patent

Design patent in India is registered under Designs Registration Act; it protects the feature of products such as shape, pattern or configuration of colours and lines.

The term of a design patent in India is for 15 years and can be renewed after 10 years of the date of application.

  • Plant Patent

A plant patent is not available in India but since India has ratified the TRIPS agreement they inculcated Plant Variety Protection(PRV) that is known to protect the rights of plant breeder.

The criteria for protection under the Act is that the harvested material should be Novel, Uniform, Distinct and Stable.

Step 6: Patent Application with IP India.

The patent filing process can be done by completing two steps process; that is by filing.

  1. Provisional Patent Application
  2. Non-Provisional Patent Application

Filing a patent application with the patent office can be started with filing a provisional application first. A provisional patent application is filed to save the priority date for an invention.

 

Requirements for filing Provisional Patent Application

  • A written description which explains the subject matter of the invention.
  • Drawings if necessary

The provisional patent application provides a one-year extension for filing non- provisional application with the patent office.

The inventor must keep in mind that the provisional patent application is not valid after 12 months and the invention being patented then falls in the public domain.

Non-Provisional Application

The non-provisional application is also known as an Ordinary Application. As per the provisions of Indian Patents Act, a patent application is to be filed for only one invention or group of inventions if they are interlinked.

Documents required for filing Patent Application in India

  • Declaration to inventorship.
  • Undertaking and statement.
  • Authorisation document for Agent or attorney (if any).
  • Proof showing right to file the patent application.

Non-Provisional Specification must include

  • The first page of the invention must include, title of invention, preamble of description and Name, address along with proof of nationality of the inventor.
  • The complete specification describing the invention, its operation along with the best way to operate the invention.
  • Drawings
  • Claims to be listed clearly as they set the scope of protection.

More on: Documents required for Patent Registration

Can you Obtain Patent for Idea?

Yes and no.

An idea in itself cannot be patented in India; since not every idea can be converted into an invention. However, certain ideas are considered patent worthy by the patent office.

For instance, if the idea is 'enabling' and the level of information in the idea is such that the person skilled in the art is able to form the idea into an invention and practice it without performing any additional research or help.

What Idea can you Patent?

There has been no express mention in the patent law provisions that an idea can or cannot be patented. This ambiguity has not been cleared by the patent office.

Moreover; the patent office has not been able to set a clear precedence whether an idea can be patented or not.

The Indian Patent Act, 1970 prescribes the following  basic requirement in order to obtain a patent :

  1. The invention must be Novel
  2. Should have Industrial Applicability
  3. Should be Non-obvious to the person skilled in the art.
     

Section 10 of the Act further lays down the requirements for patentability:

  • The application filed must contain a title which describes the subject matter of the invention.
  • Complete specification filed at the patent office must disclose the best method to perform the invention.
  • the invention must have the capability of being performed practically.
     

Hence; based on the above guidelines if an idea has the capability of being performed practically and is novel and non-obvious can be patented.

Related: Process of Patent Registration in India

Is 'Prototype' necessary to file a patent for an idea?

Filing a patent application for an idea with a prototype is not necessary. However, it is recommended to include a prototype as it makes the application stronger and increases the chances of securing a patent registration.

Take the first step!

If you think that your idea meets all of the above requirement, contact an attorney immediately and file a patent application so that you can save a prior date for your application.

 


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