FAQ - India

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Questions

General information about patents in India

From filing to grant

After grant

Sources of information

Answers

General information about patents in India


What types of industrial property rights exist in India?

India has patents, patents of addition, designs and trade marks. Applications for all of these can be filed with the Indian Patent Office.

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What are patents of addition in India?

Patents of addition relate to improvements in or modifications to patented inventions. A patent of addition cannot be granted before the main patent is granted. If the main patent is revoked, the patentee may request the conversion of the patent of addition into an independent patent. Patents of addition have the same term as patents for the main invention.

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How long is the term of protection of Indian patents?

The term of protection of an Indian patent is 20 years from the date of filing of the application, subject to the payment of annual fees. The 20-year term was introduced by the Patents (Amendment) Act 2002. It also applies to all granted patents whose term had not expired on 20 May 2003. Under the previous law the term was 14 years from the date of filing.

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What inventions cannot be patented in India?

Chapter II, Section 3 of the Indian Patents Act stipulates what is not considered an invention under the law and is therefore not patentable in India:

  • inventions being frivolous or contrary to public order, morality, public health, the environment, etc.
  • scientific discoveries
  • mere discoveries of new forms of known substances
  • methods of agriculture or horticulture
  • diagnostic, therapeutic and surgical methods for the treatment of humans or animals
  • plants and animals other than micro-organisms
  • mathematical or business methods or computer programs per se or algorithms
  • literary, dramatic, musical or artistic work or any other aesthetic creation
  • schemes, rules or methods of performing mental acts or methods of playing games
  • presentations of information
  • topography of integrated circuits
  • traditional knowledge

Inventions relating to atomic energy are not patentable either.

For more information, see the Indian Patents Act and the Manual of Patent Office Practice and Procedure.

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Can computer software be patented in India?

Under Section 3(k) of the Indian Patents Act, computer programs as such are not considered patentable subject-matter, but they may be protected under copyright law. An invention containing a computer program may be patentable if an essential part of the invention claimed is subject-matter other than a computer program and if this subject-matter is sufficiently disclosed in the specification.

For more details, see the Manual of Patent Office Practice and Procedure.

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Is India a member of the Patent Cooperation Treaty (PCT)?

Yes, India became a contracting state to the Patent Cooperation Treaty (PCT) on 7 December 1998. Since then it has been possible to designate India in international patent applications filed via the PCT route.

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From filing to grant


As a foreign applicant, do I need to appoint a professional representative in India?

The law does not say that you have to. However, if you reside abroad, you must furnish an address for service in India which will be used for all communications from the Indian Patent Office. The address of an authorised patent agent, for example, could serve as an address for service.

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Which of India's four filing offices should I file my patent application with?

India's four filing offices are in Kolkata, New Delhi, Mumbai and Chennai. Each has a separate territorial jurisdiction. Where you file your application depends on

  • where you live
  • where your business is located, and
  • where the invention actually originated.

For foreign applicants without a place of business or address in India, the territorial jurisdiction is defined by the address or place of business of their patent agent.

To find out more about the territorial jurisdiction of the four offices in India, see the Jurisdiction of patent offices section on the Indian Patent Office's (IP India) website.

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What language must I use for a patent application in India?

The official filing languages in India are English and Hindi. In the case of Patent Cooperation Treaty (PCT) applications not filed or published in English, an English translation must be submitted within the 31-month time period.

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Can I claim priority for an application filed in India?

Yes, you can claim priority when filing a patent application in India. A certified copy of the priority document must be submitted within three months of the date of filing of the application. The priority period is 12 months from the earliest priority claimed. It is possible to claim multiple priorities. Domestic priority (based on a previously filed application in India) is also available.

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What do I need to do to get an early filing date in India?

For non-Convention applications it is possible to get an early filing date by filing a provisional specification, which has to be followed by a complete specification within 12 months of filing. Provisional specifications cannot be filed for divisional, Convention or PCT national phase applications.

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Does India allow divisional applications?

Yes, applicants may file one or more divisional applications at any time prior to the grant of a patent.

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What is a provisional specification in India?

Provisional specifications can be used to secure a priority date for an application. They describe the nature of the invention without claims, and should contain the title and description of the invention. A full specification, including claims and an abstract, must be submitted within 12 months of the provisional filing.

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Are Indian patents subject to substantive examination?

Indian patents are subject to formal and substantive examination. Substantive examination is carried out on request (by the applicant or an interested party) to determine if the invention meets the patentability requirements (novelty, inventive step and industrial applicability).

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How soon after filing an application in India do I need to file a request for examination?

You must submit this request within 48 months of the date of priority or the date of filing of the application, whichever is earlier. If you do not file a request for examination within the prescribed time limit, the application will be deemed to be withdrawn.

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Can I request that my application be published earlier than 18 months from the filing date in India?

Yes, you can request early publication. The application will be published within one month of the date of the request, subject to payment of the prescribed fee.

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Can I withdraw my application before it is published in India?

Yes. In India, if you make a request for the withdrawal of your application within 15 months of the date of filing or date of priority, whichever is earlier, the application will not be published.

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Can I submit third-party observations on an Indian patent application?

Yes. Any person can oppose the grant of a patent by submitting observations to the Controller of the Indian Patent Office at any time after the publication of the patent application and before the announcement of the decision to grant. The statement and evidence presented in this "pre-grant opposition" will only be considered if and when a request for examination of the application has been filed.

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When is the first office action usually issued in India?

Since May 2006, the first office action, also called the First Examination Report (FER), is normally issued within six months of the date of the request for examination.

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What is the time limit for responding to official actions in India?

You should comply with all the legal requirements and meet all the objections put forward in the First Examination Report (FER) as soon as possible. If you fail to respond to the FER within 12 months of the date of issue, your application will be deemed to have been abandoned.

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After grant


When do I have to pay annual fees in India?

In India, the annual fees are due from the second year of the pending application. You have to pay the first annual fee on the second anniversary of the date of filing of the complete specification. If the application is granted more than two years after the date of filing, the accumulated annual fees are payable within three months of the date on which the patent was recorded in the register. Further annual fees are due each year, in advance. India has a two-tier fee system with different fees for individuals and legal entities.

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Is there a grace period for paying annual fees in India?

Yes. The time limit for the payment of annual fees can be extended by up to a maximum of six months. This extension can be obtained on request, upon payment of a fee for each month of extension.

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Can a lapsed patent be restored in India?

In India, provided the failure to pay the annual fee was unintentional, patent holders can file a request for restoration of a patent within 18 months of the lapse date, subject to the payment of an additional fee.

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Can I request an extension of the patent term in India?

No, currently India does not allow the extension of patent terms.

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How can I challenge a granted patent in India?

Since January 2005, India has had a post-grant opposition system under which you can oppose a granted patent within 12 months of the announcement of the decision to grant.

Interested parties, or the government, can also file a petition for revocation of a patent at any time during the life of the patent. Such petitions must be lodged with the Intellectual Property Appellate Board (IPAB) or at High Court level.

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Sources of information


Where can I search Indian patent information in English?

The Indian Patent Office website provides a free search system for Indian patent information called "iPairs" (Indian Patent Information Retrieval System). The system allows searches for published patent applications, granted patents and legal status information for Indian patents. It also provides online access to the Patent Office Journal, which is updated weekly on Fridays.

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Where can I find official information about patent fees in India?

You will find the Indian Patent Office's current fee schedule under Forms and fees on the IP India website.

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Can I access the documents in the file of an Indian patent application?

Yes. Once an application has been laid open, anyone can file a written request for file inspection and obtain certified copies upon payment of the requisite fee.

Alternatively, provided the relevant records have been digitised, you can download the documents in the file from the Indian Patent Office's free iPairs website.

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Where can I find information about patent agents in India?

You can find information about patent agents in India in the Electronic list of patent agents on the IP India website.

Another useful source is the Asian Patent Attorney Association APAA (section India) website.

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