Patentability for the invention should be checked during the conception of the invention. As per patent law, the invention must fulfil these basic criteria to qualify for patent registration:
Novelty search is a must for an invention as it tells the inventor whether the invention has been publically disclosed or published elsewhere.
Non-obviousness means that for the person, who is skilled in the same field, the invention should not be known. This means that the invention should be unique and new, and something others have not thought of.
An invention must have the capability of being used in any kind of industry or must have commercial applicability. Further, the invention must not fall under the criteria of disqualifications.
Once the applicant has decided to file the application with the patent office, he or she will have to prepare the patent application to be filed with the Indian Patent Office.
The applicant needs to decide whether he wants to file Provisional Specification Application or Complete Patent Specification Application.
A provisional patent specification is filed when the inventor has not yet completely finished his invention.
The main purpose to file provisional specification is to obtain a priority date for the invention. The basic rule of 75-25 is followed – where, if the invention is 75% finished the applicant can file provisional specification with the patent office.
Complete Patent Application
The complete patent specification can be filed directly with the Patent Office once the invention is complete. Claims in the patent application will determine the scope of protection of an invention. Only the Complete Specification Application will be examined by the Patent Officer.
The applicant must include the following:
Drawings explaining the working of the invention and its technical know-how along with supporting drawings.
Claim defines the scope of protection that the patent will receive. The claims filed should include essential features of the invention for which the rights are being claimed.
Time:18 Months after Filing
Publication for a patent application can be made any time prior to 18 months of the application. The 18 months for the application are calculated from either the date of filling or the priority date.
Request for Publication
If the applicant wishes to obtain an early publication date, he/she can do so by filing an application under Section 11 A (2) of the Indian Patents Act. The application is then published within 1 month of such application.
Consequences of Publication
Publishing the patent-related documents involves disclosing the complete specification along with any provisional specification that may have been filed. From the date of publication and till the date of grant of a patent, the applicant or the inventor have all the rights and privileges as provided in the case of grant of a patent.
The applicant has the right to withdraw the patent application 3 months prior to publication.
Time: Within 18 months
Pre-grant opposition is where any third party or a Government entity can raise oppositions on the subject matter of the patent if it goes against their rights and interest. Pre-grant opposition is a safety net for the patent application already filed or published.
Examination of a patent application is done only after an application for examination is made with the patent office.
Once the request for examination of the patent application is made, the Controller refers it to the Patent Examiner who has experience in the field of Invention.
The examination can be broadly classified into two distinct forms:
1. Formal Examination
A formal examination is conducted by first checking the patent documents and checking to see if they have been filed in the prescribed manner. The examiner also checks whether the application has been filed within 12 months of the provisional application.
2. Substantive Examination
The examination of the patent is made ‘substantially’ by the examiner to check if the applicant has included lawful grounds for the claim on the invention. He also checks to see if there are any objections that can be raised against the same application.
A patent is expeditiously granted by the Patent Office on the condition that:
Once the patent is granted, the Patent Office records the same in the Register and also issues a Certificate of Registration. The specification filed with the patent office is made available to the public through IP India portal.
The rights to the invention are granted only to those innovators that can justify the exclusive right over the invention. Patent registration system now has an integrated system of both Pre-grant and Post-grant opposition.
Post-grant oppositions can be filed any time after the grant of the patent but before the expiry of one year. Under this, the interested person can give a notice to the Controller in the prescribed manner along with the fees.