Filing a Patent Application in India: Procedure, Types, and Timelines

A patent is a statutory right that grants the holder the exclusive privilege to prevent others from making, using, offering for sale, selling, or importing the patented invention in India for a term of twenty years from the date of filing. The right is territorial — an Indian patent does not automatically confer protection abroad — and it is time-limited by compulsory maintenance obligations.

This article sets out the procedural framework under the Patents Act, 1970 (as amended, most recently by the Patents (Amendment) Act, 2005) and the Patents Rules, 2003 (as amended). It is intended for inventors, in-house counsel, and businesses assessing whether to protect an innovation in India.

What is patentable in India?

To be patentable, an invention must satisfy three substantive criteria under Sections 2(1)(j) and 2(1)(ja) of the Act:

1. Novelty — the invention must not have been anticipated by prior art anywhere in the world before the priority date.
2. Inventive step — the invention must not be obvious to a person skilled in the relevant field having regard to what was known or used before the priority date.
3. Industrial applicability — the invention must be capable of being made or used in some kind of industry.

Non-patentable subject matter — Section 3

Section 3 excludes a significant range of subject matter. The most commonly encountered exclusions are:

• Discoveries, scientific theories, and mathematical methods — abstract knowledge, unaccompanied by a practical application, is not patentable.
• Computer programmes per se — software is explicitly excluded. However, a software-implemented invention with a technical character and technical effect is often patentable if claimed as a method or system rather than as a programme in isolation.
• Methods of treatment — methods of treatment of the human or animal body by surgery, therapy, or diagnosis are excluded under Section 3(i).
• Mere admixture — Section 3(e) excludes a substance obtained by a mere admixture unless the components interact synergistically to produce a new property.
• Traditional knowledge — Section 3(p) excludes inventions that are part of traditional knowledge or aggregate or duplication of known properties of traditionally known components.
• Atomic energy — Section 4 separately excludes inventions relating to atomic energy.

The Indian Patent Offices

India has four Patent Offices, each with territorial jurisdiction:

For most applicants based in Rajasthan, the appropriate office is Delhi.

Types of patent applications

Ordinary application

The standard route for a new invention with no foreign counterpart. Filed on Form 1 accompanied by a complete specification (Form 2), declaration of inventorship (Form 5), and the prescribed fee.

Convention application

Filed in India claiming priority from an earlier foreign application filed in a Convention country. The Indian application must be filed within twelve months of the earliest foreign filing date under Section 135. The priority document (certified copy of the foreign application) is required.

PCT national phase application

Where an international application has been filed under the Patent Cooperation Treaty (PCT) and the applicant wishes to pursue protection in India, the national phase entry is made before the Indian Patent Office within thirty-one months of the international filing date (or priority date, if earlier). Kolkata handles all PCT national phase entries.

Provisional application

An applicant who has a conception of an invention but whose experiments are still ongoing may file a provisional specification under Section 9. This secures a priority date and gives the applicant twelve months to file the complete specification. The provisional specification need not contain claims — it describes the invention in sufficient detail to identify its nature.

Divisional application

Where an application contains more than one invention, the Controller may require the applicant to divide it. A divisional application is filed under Section 16 and retains the priority date of the parent.

The complete specification

The complete specification (Form 2) is the heart of the patent application. It must:

• Fully and particularly describe the invention and the manner in which it is to be performed
• Disclose the best method of performing the invention known to the applicant
• Define the scope of the invention through the claims
• Include an abstract of the disclosure

The claims

Claims define the legal scope of the patent. Indian practice typically uses a two-part claim format:

• Independent claims — broad claims stating the essential features of the invention
• Dependent claims — narrower claims that incorporate the features of an independent claim and add further limitations

Claim drafting is critical: claims that are too broad may not survive examination; claims that are too narrow may leave the invention commercially unprotected.

Filing the application

The application is filed electronically through the IP India e-filing portal or physically at the relevant Patent Office. The core documents are:

Request for examination and the examination process

Filing an application does not automatically trigger examination. The applicant (or any interested person) must file a Request for Examination on Form 18 within forty-eight months of the priority date or the date of filing, whichever is earlier.

An expedited examination route is available under Form 18A for:

• Applicants who are startups
• Small entities
• Female sole inventors
• Government undertakings
• Applicants from countries with which India has bilateral or multilateral agreements on patent examination

The First Examination Report

Once examination is requested, the examiner issues a First Examination Report (FER) citing objections — typically on novelty, inventive step, patentability under Section 3, or formal deficiencies. The applicant has twelve months from the date of the FER to respond and put the application in order for grant. Extensions beyond twelve months are not ordinarily available; an application that is not in order within the twelve-month period is treated as abandoned.

Grant and publication

When the examiner is satisfied that all objections have been addressed, the patent is granted and published in the Official Journal of the Patent Office. The registration date relates back to the date of filing.

Post-grant opposition — Section 25(2)

Within twelve months of the date of publication of grant, any person may file a representation opposing the patent before the Controller. Post-grant opposition may be filed on any of the grounds listed in Section 25(2), including anticipation, obviousness, non-patentability under Section 3, and false suggestion. Post-grant opposition is distinct from a revocation petition before the Intellectual Property Division of the High Court, which has no time limit.

Patent term and maintenance fees

The term of a patent is twenty years from the date of filing of the application (Section 53). For a PCT national phase application, the term runs from the international filing date.

Annual renewal fees are payable to keep the patent in force from the third year onwards. Failure to pay renewal fees results in the patent ceasing, though a period of six months (with a surcharge) is available to restore a lapsed patent under Section 60.

Working requirement and Form 27

Section 83 of the Act embodies a public policy principle: a patent must be worked in India. Every patentee and licensee is required to file Form 27 (Statement of Working) annually by 31 March for the preceding calendar year, setting out whether the patented invention was worked or not worked in India, and if worked, the quantum and value of the patented product manufactured or imported. Failure to file Form 27 carries a penalty under Section 122.