Patent

What is a Patent?

A **patent** is a statutory right granted by the government to an inventor, giving them the **exclusive right** to make, use, sell, offer for sale, or import their invention for a limited period of **20 years** from the date of filing the application. In exchange for this exclusive right, the inventor must publicly disclose the details of the invention, contributing to the body of public knowledge.

In everyday terms, if you invent a new product, machine, process, or technology, a patent gives you a legal monopoly over that invention for 20 years. During this period, no one else can commercially exploit your invention without your permission. After 20 years, the invention enters the **public domain**, and anyone can use it freely.

Legal Definition and Framework

Patents in India are governed by the **Patents Act, 1970** (as amended in 2005 to comply with the TRIPS Agreement) and the **Patents Rules, 2003**, administered by the **Indian Patent Office** under the Controller General of Patents, Designs and Trade Marks.

Key Legal Provisions

- **Section 2(1)(j):** Defines "invention" as a new product or process involving an **inventive step** and capable of **industrial application**.

- **Section 2(1)(ja):** Defines "inventive step" as a feature that involves technical advance compared to existing knowledge, or that has economic significance, and that makes the invention not obvious to a person skilled in the art.

- **Section 2(1)(ac):** Defines "capable of industrial application" as the invention can be made or used in any industry.

- **Section 6:** Application for patent — any person claiming to be the true and first inventor of the invention may apply.

- **Section 48:** Rights of patentees — the exclusive right to prevent third parties from making, using, offering for sale, selling, or importing the patented product or process.

- **Section 53:** Term of patent — **20 years** from the date of filing of the application.

Patentability Criteria

For an invention to be patentable in India, it must satisfy three essential criteria:

1. **Novelty (Section 2(1)(l)):** The invention must be new — it must not have been published, used, or known to the public anywhere in the world before the date of filing (or priority date).

2. **Inventive Step (Section 2(1)(ja)):** The invention must not be obvious to a person skilled in the relevant field. It must involve a technical advance or have economic significance.

3. **Industrial Application (Section 2(1)(ac)):** The invention must be capable of being made or used in some kind of industry, including agriculture.

What Cannot Be Patented in India?

**Section 3** of the Patents Act lists inventions that are **not patentable**, including:

- **Section 3(a):** Inventions that are frivolous or contrary to well-established natural laws (e.g., a perpetual motion machine).

- **Section 3(b):** Inventions whose primary or intended use is contrary to public order or morality, or which cause serious prejudice to human, animal, or plant life or the environment.

- **Section 3(c):** The mere discovery of a scientific principle or formulation of an abstract theory.

- **Section 3(d):** The mere discovery of a new form of a known substance that does not result in enhanced efficacy — this is the famous provision used to deny patents on incremental pharmaceutical modifications (ever-greening). The Supreme Court in **Novartis AG v. Union of India (2013) 6 SCC 1** upheld this provision, denying a patent for a new crystalline form of an existing cancer drug.

- **Section 3(e):** A substance obtained by a mere admixture resulting only in the aggregation of properties.

- **Section 3(h):** A method of agriculture or horticulture.

- **Section 3(i):** Any process for the medicinal, surgical, curative, prophylactic, or other treatment of human beings or animals.

- **Section 3(j):** Plants and animals in whole or any part thereof other than micro-organisms, but including seeds, varieties, and species, and essentially biological processes for production or propagation.

- **Section 3(k):** Mathematical or business methods, computer programmes per se, or algorithms.

The Patent Filing Process in India

Step-by-Step Procedure

1. **Patent search:** Conduct a prior art search to determine if the invention is truly novel.

2. **Filing the application (Section 6-11):** File a patent application with the Indian Patent Office (IPO), which can be a **provisional application** (to secure a priority date while the invention is still being developed) or a **complete specification**.

3. **Publication (Section 11A):** The application is published in the Patent Journal **18 months** after the filing date (or priority date). Early publication can be requested.

4. **Request for Examination (Section 11B):** The applicant must file a request for examination within **48 months** from the filing or priority date. Without this request, the application is deemed withdrawn.

5. **Examination (Section 12):** A patent examiner examines the application for novelty, inventive step, industrial applicability, and compliance with the Act.

6. **First Examination Report (FER):** The examiner issues an FER with objections, if any. The applicant must respond within **six months** (extendable by three months).

7. **Pre-grant opposition (Section 25(1)):** Any person may file a pre-grant opposition after publication but before the grant of the patent.

8. **Grant of patent (Section 43):** If all objections are resolved, the patent is granted and published in the Patent Journal.

9. **Post-grant opposition (Section 25(2)):** Any interested person may file a post-grant opposition within **one year** from the date of publication of the grant.

Maintenance and Renewal

Patents must be maintained by paying **annual renewal fees** (Section 53). Failure to pay renewal fees results in the patent ceasing to have effect.

When Does This Term Matter?

For Inventors and Startups

If you have developed a new product, process, or technology, filing a patent protects your investment in research and development. Without patent protection, competitors can freely copy your invention, eliminating your competitive advantage.

For Pharmaceutical Companies

Patent law is particularly significant in the pharmaceutical sector. The balance between patent protection for innovators and access to affordable medicines is a central policy concern. India's Section 3(d) and **compulsory licensing** provisions (Sections 84-92) are designed to prevent ever-greening and ensure public health access.

The Controller General in **Natco Pharma v. Bayer Corporation (2012)** granted India's first compulsory licence for a cancer drug, finding that the patented drug was not available to the public at a reasonably affordable price.

For Technology Companies

Software, algorithms, and business methods face restrictions under Section 3(k). However, inventions involving software that demonstrate a **technical effect** beyond the mere running of a program may be patentable. The guidelines for examination of Computer Related Inventions (CRIs) provide clarity on this.

Practical Significance

- **Territorial rights:** A patent granted in India protects only within India. For international protection, you must file in each country or use the **Patent Cooperation Treaty (PCT)** route.

- **20-year monopoly:** The patent term is 20 years from the filing date, after which the invention enters the public domain.

- **Compulsory licensing (Section 84):** After three years from the grant, any person can apply for a compulsory licence if the patented invention is not available to the public at a reasonably affordable price, the reasonable requirements of the public are not satisfied, or the invention is not worked in India.

- **Infringement remedies (Section 108):** The patentee can seek injunction, damages or account of profits, and delivery up of infringing products.

- **Employee inventions (Section 2(1)(s)):** Inventions made by employees during the course of employment generally belong to the employer, depending on the terms of the employment contract.

Frequently Asked Questions

How much does it cost to file a patent in India?

Filing fees vary based on whether the applicant is a natural person, startup, small entity, or large entity. For a natural person, the complete specification filing fee is approximately Rs. 1,600 (online). Additional fees apply for examination, publication, and renewal. Professional charges for drafting the patent specification by a patent agent add to the cost. Total costs, including professional fees, typically range from Rs. 30,000 to Rs. 1,00,000 or more.

Can I patent a mobile application or software?

Under Section 3(k), **computer programmes per se** are not patentable. However, if the software is part of an invention that produces a **technical effect** or solves a technical problem — such as a new method of data compression, an improved encryption algorithm, or a software-hardware combination — it may be patentable. The key is demonstrating a technical contribution beyond ordinary programming.

What is the difference between a patent and a copyright for software?

A **copyright** protects the **expression** of the code — the actual lines of code as written. A **patent** protects the underlying **idea or invention** — the method, process, or algorithm. Copyright prevents copying of the code but does not prevent someone from independently writing different code that achieves the same result. A patent prevents anyone from using the patented method, regardless of how they implement it.

What happens after a patent expires?

After 20 years from the filing date, the patent expires, and the invention enters the **public domain**. Anyone can freely make, use, sell, or import the formerly patented invention without needing permission or paying royalties. This is why generic pharmaceutical manufacturers can produce drugs after the patent expires.