By Saad Shaikh, Fence IP
India’s intellectual property landscape has seen significant transformations over the past few years. One of the critical areas of focus in this domain has been the evolution of patents. In this article we will explore the recent trends in patent applications in India and analyzes the reasons that make the Indian market an attractive option for patent seekers.
Contents
1. Statistical Analysis of Patents in India
2. Why Enter the Indian Market?
3. What can You Patent in India?
4. Precautions in Filing a Patent Application in India
5. The Patent Registration Process in India
6. Insights Related to Patent Registration in India
1. Statistical Analysis of Patents in India
With the wake of the 21st century, India emerged as a strong technology and innovation player. 2000-2010 witnessed a significant shift in patent filings. Subsequent decade surpassed all previous records and brough up revolution in the IP industry. IP filing records are as below:
| Year | Filed | Examined | Granted | Disposal |
|---|---|---|---|---|
| 2017-18 | 47854 | 60330 | 13045 | 47695 |
| 2018-19 | 50659 | 85426 | 15283 | 50884 |
| 2019-20 | 56267 | 80080 | 24936 | 55945 |
| 2020-21 | 58503 | 73165 | 28385 | 52755 |
| 2021-22 | 66440 | 66571 | 30073 | 35990* |
*Disposal of 15991 applications U/s 21(1) was deferred due to extension of the prescribed period of limitation by The Hon’ble Supreme Court of India.
1. Filed Applications: A consistent increase in the number of filed patent applications indicates an active interest in safeguarding intellectual property (IP) in India. From 2017-18 to 2021-22, there was a noticeable growth rate of around 38.88%.
2. Examined Applications: Although the number of examined applications saw a dip in 2021-22, overall there has been a sharp rise, reflecting efficiency in the process.
3. Granted Patents: The number of granted patents has more than doubled from 2017-18 to 2021-22. This upward trend may indicate an enhanced understanding of the requirements and a more strategic approach by applicants.
4. Disposals: The disposal numbers have experienced fluctuations, with the particular note in 2021-22 due to legal constraints.
2. Why Enter the Indian Market?
Entering the Indian market provides an opportunity for businesses to tap into a diverse consumer base with varied needs and preferences. There are four common reasons for businesses to enter the Indian market:
1. Growing Economy: India is one of the fastest-growing economies in the world. This growth is accompanied by an increase in consumer demand and technological advancements, providing a fertile ground for the introduction and commercialization of new, patented products and services.
2. Improved IP Protection: Over the years, India has made significant strides in strengthening its intellectual property (IP) laws and regulations. These improvements have made it easier for inventors and businesses to protect their IP rights, thereby encouraging more innovation and patent filings.
3. Skilled Workforce: India boasts a large pool of highly skilled scientists, engineers, and professionals. This talent can contribute significantly to research and development activities, leading to more innovations that can be patented.
4. Cost-Effective Process: The cost of filing and maintaining a patent in India is relatively lower compared to many Western countries. This cost-effectiveness makes India an attractive destination for individual inventors and small companies who may not have extensive resources.
3. What can You Patent in India?
3.1. What Can Be Patented?
1. Novelty: The invention must be new, meaning it has not been previously known or used in the public domain in any part of the world. This includes any publication in any document or display at an exhibition.
2. Inventive Step (Non-Obviousness): The invention must involve an inventive step, which means it must not be obvious to a person skilled in the relevant field of technology. This inventive step should represent a technological advancement or have economic significance.
3. Industrial Applicability: The invention must be capable of being made or used in an industry. It should have a practical application and should be capable of being manufactured or used in some kind of industry.
3.2. What Cannot Be Patented?
1. Frivolous Inventions: Inventions that are frivolous or claim anything contrary to well-established natural laws cannot be patented. For example, a machine that claims to achieve perpetual motion would be considered contrary to natural laws.
2. Inventions that may harm public order or morality: Inventions that can potentially harm public health, safety, or morals are not patentable. This includes inventions that could encourage offensive, immoral, or harmful behavior. Read also about TM registration in India.
3. A mere discovery of a new form of a known substance: Discovering a new form of a known substance which does not result in the enhancement of the known efficacy of that substance is not patentable. For example, the discovery of a new form of a known drug that does not increase its efficacy would not be patentable.
4. Computer programs per se: Computer programs as such are not patentable. However, if the computer program is linked with a novel hardware, then the invention may be patentable.
5. Mathematical methods, business methods, and algorithms: These are considered as abstract ideas that are not patentable. However, if these methods are used in a computer program or any other device to improve its functionality or solve a technical problem, they may be considered patentable.
4. Precautions in Filing a Patent Application in India
1. Public Disclosure: Public disclosure of the invention before filing a patent application can jeopardize the novelty of the invention. If the invention is disclosed in a public forum, such as a scientific publication or a conference, before filing a patent application, it may no longer be considered new or novel.
2. Patent Search: A patent search is a crucial step before filing a patent application. It helps to determine whether the invention is new and non-obvious. A thorough patent search often requires access to specialized databases and expertise in patent law and the relevant technological field.
3. Patent Specification: The patent specification is a document that provides a detailed description of the invention. It must meet certain legal requirements and should be drafted in a way that fully discloses the invention and clearly defines the scope of the protection sought. Drafting a patent specification can be complex and usually requires the expertise of a patent attorney.
5. The Patent Registration Process in India
A. Ensure Invention’s Patentability
Before patenting an invention, it must meet the prerequisites of novelty, inventive step, and industrial applicability. The first primary task is to execute a comprehensive search to ensure the invention’s uniqueness. This search is typically performed using databases such as those managed by the Indian Patent Office, WIPO, or USPTO.
B. Drafting the Patent Application
After confirming the invention’s patentability, the next stage involves drafting a meticulous application containing all specifications and claims. Applicants must fill out Form 1 of the Indian Patent Application and furnish Form 2 patent specifications. Depending on the invention’s stage of development, applicants can opt between provisional and complete patent applications. It’s wise to engage a patent agency or attorney at this stage to ensure that the application complies with all requirements.
C. Filing the Patent Application
The patent application must be submitted to the Indian Patent Office along with the required filing fee and multiple forms such as:
- Form 1: Application for granting of a patent.
- Form 2: Specification of the form of the application.
- Form 3: Information regarding foreign applications.
- Form 5: Declaration of the invention.
- Form 26: Authorization of an agent.
- Form 28: Mandatory for small entities or start-ups.
D. Publication of the Patent Application
The patent application gets published in the official patent journal, usually 18 months after filing. Early publication requests can be made through Form 9, and certain conditions may restrict publishing.
E. Examining the Patent Application
The patent officer reviews each application for compliance with Indian patent laws. Objections, if any, are listed in the First Examination Report (FER), and the applicant may need to amend the application accordingly.
F. Grant and Renewal of Patent
If the application complies with all guidelines, a patent is granted and published in the Patent Office Journal. A patent in India is valid for 20 years, with an annual renewal fee required.
6. Insights Related to Patent Registration in India
A. Pre-Examination Considerations
- Understand Patentability Criteria: Clients must comprehend the criteria of novelty, inventive step, and industrial applicability. Understanding these criteria can help inventors to design and modify their inventions to meet the patentability requirements.
- Avoid Public Disclosure: To maintain novelty, inventors should avoid disclosing their inventions to the public without first filing a patent application. Public disclosure can include presentations at conferences, publication in scientific journals, or disclosure to potential investors without a non-disclosure agreement.
- Engage Professionals for Search and Drafting: For in-depth analysis and precise drafting, employing professionals can be advantageous. Patent attorneys or agents have the necessary legal and technical expertise to conduct a thorough patent search and draft a patent application that meets all legal requirements.
B. Avoiding Oppositions
- Conduct Thorough Research: Before filing a patent application, inventors should conduct a thorough patent search to ensure that their invention does not infringe upon existing patents. This can help to avoid opposition and objections during the examination process.
- Follow the Prescribed Process: Adhering to all rules, regulations, and timelines prescribed by the Indian Patent Office can help to minimize objections and oppositions. This includes filing all required forms, paying the necessary fees, and responding to objections within the prescribed time limits.
C. Deadlines
- Early Publication: Requesting early publication can speed up the process. Normally, a patent application is published 18 months after the filing date. However, by filing Form 9, applicants can request early publication, and the application will be published within one month from the date of the request.
- Responding to Objections: Any objections listed in the FER must be addressed promptly, typically within 6 months. If the applicant fails to respond within this time limit, the application may be deemed to have been abandoned.
D. Post-Grant Considerations
- Stay Informed About Renewal Deadlines: To keep a patent in force for the entire 20-year term, the patentee must pay an annual renewal fee. If the fee is not paid within the prescribed time limit, the patent may lapse.
- Monitor the Market: Patentees should monitor the market to detect any potential infringements of their patent rights. If an infringement is detected, the patentee should be prepared to enforce their rights through legal action.
7. Conclusion
The Indian patent system, with its evolving landscape, offers numerous opportunities for inventors, businesses, and entrepreneurs. The upward trend in patent applications and grants reflects a thriving innovation ecosystem, backed by legal reforms and a commitment to IP rights protection. However, the path to successful patenting in India requires a careful understanding of what can be patented, adherence to the legal process, and strategic engagement with professional services. By taking proper precautions and leveraging the insights shared above, patent seekers can navigate the complex terrain of Indian patent law and secure valuable assets for their intellectual creativity.
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