Patent FAQs

1. What is a patent?

A patent is a statutory right granted by the Government of India under the Patents Act, 1970. It confers upon the inventor (or assignee) exclusive rights over an invention for a limited period, in exchange for full public disclosure of the invention. The patent grants the right to exclude others from making, using, offering for sale, selling or importing the patented invention without authorization. It is important to understand that a patent is a negative right it prevents others from exploiting the invention, but it does not automatically grant the patentee the right to commercially exploit it. Regulatory approvals or other legal permissions may still be required.

2. What can be patented in India?

An invention is patentable in India if it satisfies the following statutory requirements:

  • Novelty – It must be new and not disclosed anywhere in the world prior to the filing date.
  • Inventive Step – It must involve a technical advance or economic significance and must not be obvious to a person skilled in the art.
  • Industrial Applicability – It must be capable of being made or used in an industry.

Invention must not fall within the non-patentable subject matter listed under Sections 3 and 4 of the Patents Act.

3. What cannot be patented?

Certain subject matter is expressly excluded from patentability.

Under Section 3, examples include:

  • Mere discoveries of scientific principles or natural substances
  • Mathematical methods and algorithms
  • Business methods
  • Mere arrangements or re-arrangements of known devices
  • Methods of agriculture or horticulture
  • Plants and animals in whole or in part (other than microorganisms)
  • Traditional knowledge
  • Methods of medical treatment for humans or animals

Under Section 4, inventions relating to atomic energy are not patentable.

4. Who can apply for a patent?

Under Section 6 of the Act, a patent application may be filed by:

  • The true and first inventor
  • The assignee of the inventor
  • The legal representative of a deceased inventor

Applications may be filed by individuals, companies, startups, educational institutions or jointly by multiple applicants. Foreign applicants may also apply, either directly or through a patent agent registered in India.

5. Is patent registration mandatory?

Yes. Patent rights arise only after the patent is granted. Filing a patent application does not automatically confer enforceable rights. The application must undergo examination and be granted by the Indian Patent Office. Only after grant can the patentee enforce rights against infringers. However, once granted, rights relate back to the date of publication of the application.

6. What is the term of a patent in India?

Under Section 53, the term of a patent is 20 years from the date of filing of the application. For applications filed under the Patent Cooperation Treaty (PCT), the term is calculated from the international filing date. The patent remains in force only if annual renewal fees are paid.

7. Does filing a patent mean automatic protection?

No.After filing:

  1. The application is published (generally after 18 months).
  2. A request for examination must be filed.
  3. The Controller examines the application.
  4. Objections, if any, must be resolved.

Only after the Controller grants the patent do enforceable rights arise.

8. What is the difference between provisional and complete specification?

A provisional specification is filed when the invention is at a conceptual or developmental stage. It secures a priority date and provides time (12 months) to refine the invention.A complete specification must:

  • Fully describe the invention
  • Disclose the best method of performing it
  • Clearly define claims
  • Enable a person skilled in the art to perform it

Failure to file the complete specification within 12 months results in abandonment.

9. What is prior art?

Prior art includes any information made available to the public anywhere in the world before the filing date of the application.This includes:

  • Earlier patents
  • Published patent applications
  • Scientific publications
  • Public use or sale
  • Internet disclosures

If prior art discloses the same invention, the application lacks novelty.

10. What is an inventive step?

An inventive step means the invention:

  • Demonstrates a technical advance or economic significance; and
  • Is not obvious to a person skilled in the art.

The test is whether the invention would have been obvious in light of existing prior art. Mere workshop improvements or routine modifications are not sufficient.

11. When does a patent application get published?

Under Section 11A:

  • Publication occurs after 18 months from the filing or priority date.
  • Early publication may be requested by the applicant.

After publication, the applicant may claim reasonable royalty from infringers, subject to grant.

12. What is a request for examination?

Under Section 11B, examination does not occur automatically.A request for examination (RFE) must be filed within the prescribed time. If not filed, the application is deemed withdrawn.Expedited examination may be available to eligible applicants such as startups or applicants selecting India as the International Searching Authority.

13. What is a First Examination Report (FER)?

The First Examination Report (FER) contains:

Objections relating to novelty or inventive step

Formal deficiencies

Clarifications required by the Controller

The applicant must respond within the prescribed period. Failure to comply results in abandonment of the application.

14. Can a patent application be opposed?

Yes. The Act provides two mechanisms:

Pre-grant Opposition (Section 25(1))

Filed before grant by any person.

Post-grant Opposition (Section 25(2))

Filed within one year from grant by an interested person.Grounds include lack of novelty, obviousness, wrongful obtaining, non-disclosure of information or non-patentable subject matter.

15. What rights does a patentee get after grant?

Under Section 48, the patentee has the exclusive right to prevent third parties from:

  • Making the patented product
  • Using it
  • Selling or offering it for sale
  • Importing it

For process patents, the patentee can prevent use of the process and sale of products directly obtained from that process.These rights are subject to compulsory licensing and other statutory limitations.

16. What is patent infringement?

Patent infringement occurs when a person performs any exclusive act reserved for the patentee without authorization.Remedies under Section 108 include:

  • Permanent or interim injunction
  • Damages or account of profits
  • Seizure or destruction of infringing goods

Criminal remedies are not generally available for patent infringement in India.

17. Can a patent be revoked?

Yes. Under Section 64, revocation may be sought on grounds such as:

  • Lack of novelty
  • Lack of inventive step
  • Non-patentable subject matter
  • Insufficient disclosure
  • Non-disclosure of foreign filings
  • Wrongful obtaining

Revocation proceedings may be initiated before the High Court.

18. What is compulsory licensing?

Under Section 84, after three years from grant, a compulsory licence may be sought if:

  • Public requirements are not met
  • The invention is not available at a reasonably affordable price
  • The invention is not worked in India

Compulsory licensing ensures balance between patent rights and public interest.

19. Is patent protection territorial?

Yes. Patent protection is territorial.A patent granted in India is enforceable only within India. Protection in other countries requires separate filings, either directly or through international mechanisms such as the PCT.

20. Can patents be assigned or licensed?

Yes. Under Sections 68 and 69:

  • Assignments and licenses must be in writing.
  • They must be recorded with the Patent Office.
  • Failure to record may affect enforceability.

Patents are transferable intellectual property assets.

21. What happens if renewal fees are not paid?

Annual renewal fees must be paid to maintain the patent.If renewal fees are not paid:

  • The patent lapses.
  • Restoration may be sought within the prescribed time if failure was unintentional.

22. Can software be patented in India?

Software “per se” is not patentable under Section 3(k).However, if the software is combined with hardware and produces a demonstrable technical effect or technical contribution, it may be considered patentable, subject to examination guidelines.

23. What is working of a patent?

Under Section 146:

  • The patentee must furnish information regarding the working of the patent in India.
  • This is done through prescribed statements.
  • Non-compliance may attract penalties.

This requirement supports transparency and public interest objectives.

A patent protects inventions, processes and technical solutions.Copyright protects original literary, artistic, musical and dramatic works.Patent protection requires filing, examination and grant. Copyright arises automatically upon creation.The duration, scope and enforcement mechanisms differ significantly.

25. Why are patents important?

Patents:

  • Encourage innovation by rewarding inventors
  • Promote disclosure of technical knowledge
  • Attract investment
  • Enable technology transfer
  • Stimulate industrial growth

After expiry (20 years), the invention enters the public domain, benefiting society at large.

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