- An invention must be new, involve an inventive step and be capable of industrial application, and must not fall within the exclusions of section 3 or 4.
- Computer programs per se, mathematical or business methods and algorithms are excluded (section 3(k)); software-related inventions succeed where they show a technical effect.
- An application is published 18 months after filing or priority date (section 11A); examination happens only if requested (section 11B).
- The term is 20 years from the date of filing (section 53), subject to annual renewal fees.
The three tests and the exclusions
| Requirement | Meaning | Provision |
|---|---|---|
| Novelty | Not published or used anywhere in the world before the date of filing | Section 2(1)(l) |
| Inventive step | A technical advance or economic significance that is not obvious to a person skilled in the art | Section 2(1)(ja) |
| Industrial application | Capable of being made or used in an industry | Section 2(1)(ac) |
| Not excluded | Must not be a discovery, method of agriculture, a mere new form of a known substance without enhanced efficacy, a computer program per se, and the other categories in section 3 | Sections 3, 4 |
From filing to grant
Prosecution of an Indian patent application
- 01
Search & draft
Prior-art search; a provisional specification can secure an early date, followed by a complete specification within 12 months.
- 02
File
File at the Patent Office with jurisdiction — the offices are at Kolkata, Mumbai, Delhi and Chennai — with the prescribed forms and fee.
- 03
Publish
Publication in the Patent Journal 18 months from the earliest priority date, or earlier on request.
- 04
Examine
Request for examination in the prescribed time; the Examiner issues the First Examination Report with objections.
- 05
Respond
Applicant answers the objections within the period allowed; hearing if required.
- 06
Grant
Patent granted and published; renewal fees run annually.
Opposition and revocation
Pre-grant opposition (section 25(1))
- Any person may oppose after publication and before grant.
- Limited grounds, such as prior publication, obviousness or non-patentable subject matter.
- The Controller hears the opponent and the applicant before deciding.
Post-grant opposition (section 25(2))
- A person interested may oppose within 12 months of publication of grant.
- Opposition Board examines; the Controller decides.
- Revocation of a granted patent can also be sought from the High Court under section 64 (the former Appellate Board was abolished in 2021).
International routes and priority
Priority and international timeline
- Day 0First filing anywhere — this is the priority date.
- Within 12 monthsFile in other Paris Convention countries, or a PCT international application, claiming priority (section 135 for India).
- 18 monthsPublication of the application, if filed first in India.
- 31 months from priorityNational phase entry in India from a PCT application is due, subject to extension rules for late entry.
Obligations after grant
- Renewal fees are payable annually from the third year after filing to keep the patent in force.
- Statement of working (Form 27) must be filed in respect of the patented invention, setting out whether and to what extent it has been worked in India (section 146).
- Compulsory licence may be granted after three years from grant if the invention does not satisfy the reasonable requirements of the public, is not worked in India, or is unaffordably priced (section 84).
- Assignments and licences must be in writing and registered with the Patent Office.
Before filing
- Written invention disclosure with drawings and alternative embodiments
- Prior-art search against Indian and international databases
- Confidentiality agreements signed with every collaborator and investor who sees the invention
- Assignment from every inventor to the applicant
- Decision on provisional vs complete filing and on international priority
Frequently asked
What is the cost and timeline?
Fees depend on the applicant category — individual, small entity, start-up or other — and on the number of claims and pages. Grant usually takes several years from filing, depending on the technology and the examination backlog, and cannot be reliably predicted.
Can a start-up get a faster route?
Eligible start-ups, small entities and certain other categories can request expedited examination under the Patent Rules, with reduced fees; the criteria are set by the Rules and the Patent Office’s notices.
Is an Indian patent valid abroad?
No. A patent is territorial. Protection in other countries needs separate applications, usually through the Paris Convention route within 12 months or a PCT application.
Can I patent an app?
A software application as such is excluded; an application that provides a technical solution to a technical problem — for example, improving how data is processed in a device — may be patentable. Many apps are better protected by copyright and trademark.
The Patents Rules, fee schedules, examination timelines and the Patent Office’s guidelines are revised periodically. Confirm the current Rules and fee schedule before filing. Not a substitute for advice from an advocate or chartered accountant on your facts.