Who can apply for a patent in India
Under the Patents Act 1970, a patent application can be filed by the true and first inventor(s), assignee, or legal representative. The application is filed by submitting the form to the Indian Patent Office with either a provisional or complete specification of the invention. Applications can also be made online through the available comprehensive online filing system.
Therefore, legally, the patent application can be filed in India by an individual to file his patent himself. However, filing for a patent is one of the many steps of the more extensive process involved with patent applications, ultimately obtaining a patent. The legal intricacies involved in this complex patent application process provide scope for pitfalls when an individual files his patent application himself.
Steps for obtaining a patent in India
Some of the essential steps for obtaining a patent in India are provided below:
1. Patentability search
2. Patent specification drafting
3. Filing of patent application
4. Publication of patent application
5. Examining of patent application
6. Grant of patent
Though the legal procedure to obtain a patent in India begins by drafting a comprehensive patent application with strong patent claims, conducting a prior art search and checking the invention’s patentability is essential. Subsequently, the patent application is drafted and filed with the patent office in compliance with the prescribed rules. Post-filing, the application is examined, and objections may be raised, necessitating timely replies from the applicant.
A patent is a techno-legal document; therefore, drafting it requires the application of both technical as well as legal knowledge. Thus, though an individual can draft his patent application, drafting a patent application solely as a technical document without considering the legal aspects may limit the scope of protection in the application and render all research and development moot efforts.
The patent prosecution stage is highly critical, where the patent application is examined. The objections raised through patent office action necessitate the applicant to provide timely office action responses. To submit timely responses to the office action report effectively, the experience of a patent professional is of great utility. Moreover, patents are based on the principle of territoriality. So, if a patent needs to be filed in various countries, it is better to seek professional assistance, as the particulars of the application process differ in different jurisdictions.
Why consider taking professional help for filing patents?
It is pertinent to note that difficulties regarding a patent application filed by the individual may arise even after being granted the patent. As a result of the poorly drafted patent claims, which are not comprehensive yet concise, the legal protection obtained by the patent may be of a narrow scope, thereby allowing competitors to “design around.” This would negate the individual’s invention’s commercial value and render the patent futile. Therefore, a patent professional’s expertise in drafting patent claims facilitates a successful patent grant and ensures that the patent is commercially valuable.
The seeming cost-saving advantage of the decision to self-file a patent application is short-sighted as the costs of employing a patent professional is no less than an investment, which can minimize errors in the application process and simplifies the complex process of obtaining a patent. Moreover, where the patent claims are well-drafted, the costs of professional help can be justified by the benefits accrued through the patent’s commercialization, assignment, or licensing.
To conclude, the answer to the question of an individual filing his patent application himself is in the affirmative. However, it is bound to lead to the question of how broad, defensible, and commercially viable such a patent would be. Therefore, despite the cost savings in filing one’s patent application, engaging a professional’s services is advisable to avoid pitfalls and ensure that the obtained patent is helpful in the long run.
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