Patent Filing Procedure for SMES/Startups (applicants) from India
National Route
Indian Patent Application can be filed at IPO (Indian Patent Office) operates from four locations in India i.e. Delhi, Mumbai, Kolkata and Chennai.
Step1: Filing at IPO
At the time of Filing we can file either provisional patent application or Complete Patent Application. If we files provisional patent Application then we have to file Complete Application within 12 months from priority date (Filing date of provisional Application).
- Provisional Patent Application
- Complete Patent Application
Step 2: Publication
Patent application normally takes 18 months to be published at IPO website, although applicants who are willing to get application published early may request for early publication by filing Form 9 at IPO. After publication pre grant opposition can be filed.
Step 3: Examination
Patent application is taken up for examination after 48 months from the date of filing. An Application for Patent will not be examined unless the applicant or any other person interested makes a request for examination. Therefore, it is mandatory to file a request for examination (Form18) within 48 months from filing the patent.
Step 4: Issue of Examination Report
Once a request for examination is received and the application is published, application is taken up for examination in the chronological order of filing of request for examination. When an application is referred by the Controller, the Examiner makes a report on the patentabilility as well as other matters ordinarily within one month but not exceeding three months from the date of such reference.
Step5: Response to Examination Report
The Controller considers the report of the examiner ordinarily within one month from the date of the receipt of such report and objections, if any. Then Controller sent the report to applicant as First Examination Report (FER). Applicant has to respond for First Examination Report within 6 month from the date of issue of Examination Report.
Step 6: Grant of Patent
If there is no objection to the grant of patent and no pre-grant opposition is pending, the patent is granted at the earliest.
Post grant opposition can be filed after the grant of patent.
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International Route
Patent cooperation treaty
The Patent Cooperation Treaty (PCT) is an international treaty with more than 150 Contracting States. It is administered by the World Intellectual Property Organization (WIPO). Indian citizens can file a PCT application within 12 months from the priority date at receiving offices in India i.e. Delhi, Kolkata, Mumbai and Chennai or at WIPO directly.
After the PCT Application is filed, the applicant gets an International Search Report (ISR) and a written opinion on the patentability of the subject matter. The applicant may also file a demand for an International Preliminary Examination. Then the applicant may decide to enter in the national phase.
In PCT, national route follows the international route. It is necessary for an applicant to file a national phase application in each designated country where protection is required for, within the time prescribed under PCT i.e. within 30 months from the priority date.
However, this time limit may be increased through National Laws by each member Country. Indian Patent Law provides a time limit of 31 months from the priority date. Some countries allow extension of such time limit on payment of additional fee.
For more information please visit: http://ipindia.gov.in/writereaddata/images/pdf/pct-filing.pdf
A diagram showing the entire timeline of the PCT process:
Paris Convention
177 countries (members) are signatories of Paris Convention. India is also a signatory of this convention which allows the application for patents in India to member countries with priority application within 12 months from the priority date followed by normal filing procedure in IPO. Indian citizens can also file to the member countries within 12 months from date of filing at IPO (priority date).
Direct Foreign Filing
For Indian citizens who are not willing to file patent application in India and wants to move directly for foreign patent application (either in other country or in PCT), it is mandatory to take permission for foreign filing granted u/s 39 (Foreign filing License) from the Controller. If such permission is sought along with the application, there is a probability that the permission may be deferred and the application may be referred to DRDO / Department of Atomic Energy for their directions.
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Also Read
Patent Opposition Process in India
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