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Types of Patent Applications in India: A Comprehensive Guide

Updated on : Feb. 15, 2023 - 2 p.m. 17 min read.

In today's fast-paced world, the importance of protecting intellectual property cannot be overstated. Patents are a crucial aspect of this, as they provide exclusive rights to an inventor or a company over their invention or innovation. However, not all patents are created equal, and it is essential to understand the different types of patent rights available to you. This comprehensive guide will take you through the various categories of patents, including utility patents, design patents, and plant patents. We will explore the differences between them, the requirements for obtaining them, and the duration of their protection. Whether you are a budding entrepreneur, a small business owner, or an established corporation, this guide will equip you with the knowledge you need to make informed decisions about patent protection and safeguard your intellectual property. So, let's dive in and explore the world of patents together!

What is a Patent?

According to Indian law a patent is a form of legal protection granted to inventors for their new and original inventions. The Indian Patent Act of 1970 governs the patent system in India and provides for the grant of patents for inventions that are new involve an inventive step and are capable of industrial application. Inventors can apply for a patent with the Indian Patent Office by filing a patent application which must include a detailed description of the invention including how it works and how it is made.

Patent application

A patent application is a legal document that is filed with a government agency, such as the Indian Patent Office in order to protect an invention. A patent gives the inventor exclusive rights to prevent others from making using selling and importing the invention for a certain period of time usually 20 years from the date of filing. In order for an invention to be eligible for a patent it must be new useful and non-obvious. Additionally the invention must be fully and clearly disclosed in the patent application in order for the patent office to determine if it meets the necessary criteria.

The types of patent applications are:

  1. Provisional Application
  2. Ordinary or Non-Provisional Application
  3. Convention Application
  4. PCT International Application
  5. PCT National Phase Application
  6. Patent of Addition
  7. Divisional Application

Provisional Application

A Provisional Application is a type of patent application that allows an inventor to secure a filing date for their invention without the need to fully disclose the details of the invention. This application allows the inventor to use the term “Patent Pending” on their invention while they work on completing the non-provisional application. The Provisional Application is valid for a period of 12 months from the date of filing and it provides the inventor with an opportunity to test the market for their invention and gather feedback before committing to the expense of a non-provisional application.

Additionally, this application can be converted into a non-provisional application within 12 months of filing the provisional application. It is important to note that a provisional application does not mature into an issued patent, rather it serves as a placeholder for the inventor’s invention while they work on the non-provisional application.

Ordinary or Non-Provisional Application

An Ordinary or Non-Provisional Application is a type of patent application that is filed after an inventor has completed their invention and is ready to seek patent protection. This type of application is also known as a complete application as it includes a detailed description of the invention including drawings, claims and any other relevant information that is necessary to fully describe the invention. This type of application is filed with the Indian Patent Office which will then conduct a thorough examination process to check the patentability of the invention.

The benefits of filing an Ordinary or Non-Provisional Application include:

  • Exclusive rights to the invention: Once granted, the patent provides the inventor with exclusive rights to prevent others from making, using, selling or importing the invention for a certain period of time.
  • Legal protection: A granted patent can be used as a legal tool to protect the invention against infringement by others.
  • Licensing and commercialization opportunities: A granted patent can be licensed or sold to others, providing the inventor with a source of revenue.
  • Competitive advantage: A granted patent can provide a competitive advantage in the marketplace by giving the inventor a unique selling point.

It is important to note that an Ordinary or Non-Provisional Application must be filed within 12 months of the Provisional Application otherwise the Provisional Application will expire. Also the patent office will conduct a thorough examination process to check the patentability of the invention which can take several months or even years before a final decision is made.

Convention Application

A Convention Application is a type of patent application that is filed by an inventor who has already filed for patent protection in another country that is a member of the Paris Convention for the Protection of Industrial Property. This type of application is filed within 12 months of the first application and allows the inventor to claim priority from the earlier filed application.

In India a Convention Application is filed under the Patents Act of 1970, and the rules and regulations specified under the act. The process of filing a Convention Application in India is similar to filing an Ordinary or Non-Provisional Application. The inventor is required to file a complete specification, including a claim or claims, drawing and an abstract along with the necessary fees.

The benefits of filing a Convention Application in India include:

  • Priority date: The priority date of the application is the date of the first application which can be important in cases where the invention has been publicly disclosed before the application is filed in India.
  • Wider protection: By filing a Convention Application in India, the inventor can seek patent protection in multiple countries that are members of the Paris Convention.
  • Reduced costs: Filing a Convention Application in India can be less expensive than filing separate applications in each country.
  • Simplified process: Indian Patent Office provides a streamlined process for filing and prosecution of patent applications in India.

It is also important to note that if an inventor files a Convention Application in India he/she will have to file a corresponding application in other countries within 12 months from the date of priority.

PCT International Application

A PCT International Application under Indian law is filed under the Patent Cooperation Treaty (PCT) which is an international treaty that provides a standardized process for filing patent applications in multiple countries. The PCT International Application is filed with the Indian Patent Office which acts as a Receiving Office (RO) and is then forwarded to the International Bureau (IB) of the World Intellectual Property Organization (WIPO) for further processing.

The benefits of filing a PCT International Application in India include:

  • Wider protection: The PCT International Application can be filed in multiple countries, which provides the applicant with the possibility of seeking patent protection in many countries with a single application.
  • Time-saving: The PCT International Application allows the applicant to delay the national phase entry in each country up to 30 or 31 months from the earliest priority date, which can save the applicant time and money.
  • Simplified process: The PCT International Application provides a standardized process for filing and prosecution of patent applications in multiple countries.

It is also important to note that after the PCT International Application is filed, the applicant will have to enter the national phase in each country where protection is sought by paying additional fees and translating the application into the local language.

PCT National Phase Application

A PCT National Phase Application under Indian law refers to the process of entering the national phase of a PCT International Application in India. It is a process that occurs after a PCT International Application has been filed and processed by the International Bureau (IB) of the World Intellectual Property Organization (WIPO).

The PCT National Phase Application must be filed with the Indian Patent Office within 31 months from the earliest priority date. The applicant must pay additional fees and translate the application into the local language. Once the PCT National Phase Application is filed it will be examined by the Indian Patent Office to ensure compliance with Indian patent laws.

The benefits of filing a PCT National Phase Application in India include:

  • Maintaining international priority: By entering the national phase in India, the applicant can maintain the priority date of the PCT International Application, which allows the applicant to claim priority from an earlier filed patent application.
  • Simplified process: By filing a PCT International Application, the applicant can simplify the process of seeking patent protection in multiple countries.
  • Wider protection: The PCT National Phase Application in India allows the applicant to seek patent protection in India as well as other countries where PCT National Phase Application is filed

It is also important to note that after the PCT National Phase Application is filed in India, it will be subject to the same examination process as a regular patent application the applicant may need to provide additional information or make amendments to the application to comply with Indian patent laws.

Patent of Addition

A Patent of Addition also known as a divisional patent, is a type of patent that is granted for an invention that is a division or an improvement of the original invention for which the main patent was granted. Under Indian law a Patent of Addition can be filed within three years of the grant of the original patent. To be eligible for a Patent of Addition the invention must be new and must not have been published or publicly used before the filing of the application. The invention must also be sufficiently different from the original invention to warrant a separate patent.

The process for obtaining a Patent of Addition is similar to that for obtaining a regular patent including a thorough examination of the invention to ensure that it meets the legal requirements for patentability including novelty non-obviousness and usefulness.

Divisional Application

A Divisional Application, also known as a divisional patent, is a type of patent application that is filed for a distinct and independent invention that is disclosed in a pending parent application. Under Indian law a Divisional Application can be filed at any time before the grant of a patent for the parent application. The purpose of a Divisional Application is to allow an inventor to pursue separate protection for different aspects of the invention that were originally claimed in the parent application. To be eligible for a Divisional Application the invention must be new and must not have been published or publicly used before the filing of the application. The invention must also be sufficiently different from the invention in the parent application to warrant a separate patent.

By Amit pawar   
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