Patent Rights: FAQs

A Patent is an intellectual property right relating to inventions. It is the grant of exclusive right, for a limited period, provided by the government to the patentee, in exchange for full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process producing that product for those purposes.

The purpose of this system is to encourage inventions by promoting their protection and utilisation to contribute to the development of industries, which in turn contributes to the promotion of technological innovation and the transfer and dissemination of technology.

Patent rights are property rights, i.e. they provide a legal title to the applicant for the invention for which a patent has been granted and could be extremely valuable.

Patent right is territorial, and a patent obtained in one country is not enforceable in any other country. Therefore, the inventors/their assignees must file separate patent applications in different countries to get a patent in those countries.

The first to file system is employed in India, in which, among persons having filed applications for the same invention, the first one to apply is granted a patent. Therefore, a patent application should be filed promptly after conceiving the invention.

It is a common experience that through ignorance of patent law, inventors act unknowingly and jeopardise the chance of obtaining patents for their inventions. The most common of these indiscretions is to publish their inventions in newspapers or scientific and technical journals before applying for patents. Publication of an invention, even by the inventor himself, would (except under certain rare circumstances) constitute a bar for its subsequent patenting. Similarly, the use of the invention in public, or the commercial use of the invention, before the date of filing a patent application would be a fatal objection to the grant of a patent for such invention after that. There is, however, no objection to the secret working of the invention by way of reasonable trial or experiment or to the disclosure of the invention to others confidentially. Another mistake that the inventors frequently make is waiting until their inventions are fully developed for commercial work before applying for patents. It is, therefore, advisable to apply for a patent as soon as the inventor's idea of the nature of the invention has taken a definite shape.

It is permissible to apply for a patent accompanied by a "Provisional Specification" describing the invention. The application may, therefore, be made even before the full details of the working of the invention are developed. The filing of an application for a patent disclosing the invention would secure the priority date of the invention and thereby enable the inventor to work out the practical details of the invention and to file a complete specification within 12 months from the date of filing of the provisional specification.

The inventor may make an application, either alone or jointly with another, or his/their assignee (for example, the employer) or legal representative of any deceased inventor or assignee.

A new product or process involving an inventive step and capable of being made or used in industry. It means the invention to be patentable should be technical and should meet the following criteria -

1. Novelty: The matter disclosed in the specification is not published in India or elsewhere before filing the patent application in India.

2. Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.

3. Industrially Applicable: Invention should possess the utility to make or use it in an industrial setting.

Before proceeding with the process of filing a patent application, it is advisable that a prior art search for the invention may be conducted. A prior art search helps in discovering the current state of the field of technology to which the invention relates and thereby helps in determining the novelty of the invention. This is done by searching through global patent databases and non-patent literature to determine whether the product or process for which a patent application is being considered is already in public use or a patent has been applied for or granted to it in India or any other jurisdiction.

A patent application is accompanied by a patent specification which is a technical and legal document. The specification should fully describe the invention with the help of drawings wherever possible. The specification must be written so that a person of ordinary skill in the relevant field to which the invention pertains can understand the invention. The most important part of a patent specification is the claims. Claims define the monopoly that the applicant claims about his or her invention. A claim is a statement of technical facts expressed in legal terms defining the scope of the invention sought to be protected. Every complete specification must have at least one claim.

Where an invention is at the development stage but has not been completely materialised, an application for a patent may be filed accompanied by a provisional specification. This helps secure a patent filing date; therefore, any publication or application for a patent filed beyond this date would not prejudice the invention. A provisional specification should contain the description of the invention with drawings if required. It is not necessary to include claims in a provisional specification. However, the complete specification should be fairly based on the matter disclosed in the provisional specification. It should be filed within 12 months of filing the provisional specification. If the complete specification is not filed within this period, the application is deemed to have been abandoned.

All the applications for patent, except the applications prejudicial to the defence of India or abandoned due to non-filing of complete specification within 12 months after filing the provisional or withdrawn within 15 months of applying, are published in the Patent Office Journal just after 18 months from the date of filing of the application or the date of priority whichever is earlier. The patent applications are not open for public inspection before publication. The applicant gets provisional rights in the invention from the date of publication.

An application is not examined automatically. It is taken up only once a request for examination is filed, by the applicant or by any other interested person, on Form 18 (or Form 18A, where expedited examination under Rule 24C is available).

The period for filing that request depends on when the application was filed:

• Applications filed, or entering the Indian national phase, on or after 15 March 2024 — thirty-one months from the priority date or the filing date, whichever is earlier.

• Applications filed before 15 March 2024 — the earlier period of forty-eight months continues to apply.

The reduction was made by the Patents (Amendment) Rules, 2024. For applicants entering the national phase from a PCT application, the request for examination now falls due at the same moment as national phase entry, and is filed together with it.

If no request is filed within the applicable period, the application is deemed to be withdrawn under Section 11B(4) of the Act. Rule 137 is expressly unavailable to correct this. The only remaining route is a request in Form 4 under Rule 138, which the Controller may grant for a period of up to six months. That power is discretionary and attracts a substantial fee. Once the six-month window closes, no remedy remains.

Once examined, the Patent Office issues a First Examination Report setting out its objections and requirements. These commonly go to novelty, inventive step, subject matter excluded under Section 3, sufficiency of description, clarity of claims, and formal or procedural matters including information required under Section 8.

The applicant must put the application in order for grant within six months from the date on which the First Examination Report is issued. The application or the complete specification may be amended in order to meet the objections, within the limits that Sections 57 to 59 permit.

That six-month period may be extended by a further three months on a request in Form 4 under Rule 24B(6), together with the prescribed fee. The request must be made before the initial six-month period expires. Where that has been missed, a request under Rule 138 may be available for a further period, at the Controller's discretion and on payment of a considerably higher fee.

If the requirements are not met within the period allowed, the application is treated as abandoned. Where they are met, the patent is granted and the grant is published in the Patent Office Journal.

The term of every patent is 20 years from the date of filing of the patent application, irrespective of whether it is filed with provisional or complete specifications.

The date of the patent is the date on which the application for the patent is filed.

Where a patent covers a product, the grant of a patent gives the patentee the exclusive right to prevent others from performing, without authorisation, the act of making, using, offering for sale, selling or importing that product for the above purpose.

Where a patent covers a process, the patentee has the exclusive right to exclude others from performing, without his authorisation, the act of using that process, using and offering for sale, selling or importing for those purposes, the product obtained directly by that process in India.

To keep the patent in force, a renewal fee must be paid annually. The first renewal fee is payable for the third year and must be paid before the expiration of the second year from the date of the patent. Suppose the patent has not been granted within two years. In that case, the renewal fees may be accumulated and paid immediately after the patent is granted, or within three months of its recordal in the Register of Patents or within an extended period of 9 months by paying extension fees of six months, from the date of recordal. If the renewal fees are not paid within the prescribed time, the patent will cease to have effect. However, provision to restore the patent is possible provided the application is made within eighteen months from the date of cessation.

The renewal fee is counted from the date of filing the Patent application. Six months' grace time is available with an extension fee for payment of the renewal fee.

In that case, you will have an option to restore the patent. Application for restoration of a patent that lapses due to non-payment of renewal fees must be made within 18 months of lapse.

Section 39 applies to any person resident in India, whatever their nationality. A person resident in India may not apply for a patent outside India for an invention, or cause such an application to be made, unless one of two conditions is met:

• an application for the same invention has been filed in India, and at least six weeks have passed since that filing, and no direction prohibiting or restricting publication has been given under Section 35; or

• written permission has been obtained from the Controller. This is requested on Form 25 with the prescribed fee, accompanied by a brief description of the invention and details of the intended foreign filing. Rule 71 requires the Controller ordinarily to dispose of such a request within twenty-one days, except where the invention is relevant for defence or atomic energy purposes.

Section 39 does not apply where an application for protection has first been filed outside India by a person resident outside India.

The consequences of getting this wrong are serious. Under Section 40, a corresponding Indian patent granted on an application made in contravention of Section 39 is liable to be revoked. Under Section 118, contravention is punishable with imprisonment of up to two years, or a fine, or both — a provision that the Jan Vishwas decriminalisation of 2023 did not touch.

In practice, this most often arises where an inventor based in India contributes to an invention filed first by a parent company abroad, and no one has treated the Indian inventor's residence as a filing constraint. A short foreign-filing check, applied before anything goes overseas, resolves it.

Thirty-one months from the earliest priority date. This is prescribed by Rule 20(4)(i) of the Patents Rules, 2003, and applies whether or not a demand for international preliminary examination was filed — India does not operate a 30-month/31-month split.

If the requirements of Rule 20 are not met within that period, the international application designating India is deemed to be withdrawn under Rule 22. There is no separate "late entry" route in the Act.

Possibly, but it should never be relied upon in planning.

Rule 138 was substituted by the Patents (Amendment) Rules, 2024 with effect from 15 March 2024 and is now titled "Power to extend time specified or condone delay". It permits the Controller to extend time, or condone a delay, for up to six months on a request in Form 4 accompanied by a substantial official fee. The request may be made more than once, provided it is made before the six-month window closes.

Three points matter in practice:

• The power is discretionary. Extensions are ordinarily considered only where the applicant can demonstrate a genuine intention to pursue the application. Inadvertence and docketing failure are not, by themselves, persuasive.

• Before the 2024 amendment, the 31-month deadline was widely treated as inextensible, and Indian courts took a strict view of missed national phase entries. The amended rule has been read as opening a route to relief and the e-filing portal now accepts such requests, but the position is still settling.

• The official fees involved are high.

Treat 31 months as a hard date and use Rule 138 only as a recovery mechanism.

The usual set is:

• Application form (Form 1) with full applicant and inventor particulars

• The specification as filed, together with any amendments made under Article 19 or Article 34, and a verified English translation where the international application was not in English

• Statement and undertaking regarding corresponding foreign applications (Form 3, under Section 8)

• Declaration as to inventorship (Form 5), where applicable

• Power of attorney (Form 26)

• Proof of right, where the applicant is not the inventor and the chain of title is not already apparent from the PCT record

• Priority document, where it has not been made available through the International Bureau or DAS

• Sequence listing in electronic form, for applications in the life sciences

A request for examination is also due at the 31-month point for applications entering on or after 15 March 2024, so Form 18 or Form 18A is filed at entry rather than being docketed separately.

No — not for anything recent. The 2024 amendment reduced the period for filing a request for examination from 48 months to 31 months from the priority date or the filing date, whichever is earlier.

• Applications filed, or entering the Indian national phase, on or after 15 March 2024: 31 months.

• Applications filed before 15 March 2024: the earlier 48-month period continues to apply.

This is a common source of docketing error in portfolios migrated between systems, because the two tracks are distinguished by filing or national phase entry date, not by priority date.

If the request is not filed in time, the application is deemed to be withdrawn under Section 11B(4). Rule 137 is expressly unavailable for this deadline, which leaves a Form 4 request under Rule 138 as the only route, and only within the six-month window.

Section 146(2) of the Patents Act requires the patentee, and every licensee, to tell the Patent Office whether the patented invention is being worked commercially in India. The statement is filed on Form 27 under Rule 131.

The obligation is independent for each party. A licensee's duty is not discharged by the patentee filing, and vice versa. Where several related patents are held by the same patentee, a single Form 27 may cover them.

There is no direct counterpart to this requirement in most other jurisdictions, which is why it is frequently missed by foreign patentees managing Indian portfolios from abroad.

Once every three financial years, rather than annually.

Rule 131(2), as amended with effect from 15 March 2024, requires the statement to be furnished once in respect of every period of three financial years, beginning with the financial year commencing immediately after the financial year in which the patent was granted. It must be filed within six months of the end of that three-year period — in practice, by 30 September.

Worked example: for a patent granted in financial year 2023-24, the first reporting period covers 2024-25, 2025-26 and 2026-27, and the statement is filed between 1 April and 30 September 2027.

Currently due: patents granted up to financial year 2022-23, whose last annual statement covered 2022-23, report for 2023-24, 2024-25 and 2025-26 in the window running to 30 September 2026.

Considerably less than the old form. The revised Form 27 asks, in substance:

• whether the patent has been worked in India;

• if it has been worked, a confirmation to that effect — no figures for quantum or value are now required;

• if it has not been worked, the reasons and the steps being taken towards working; and

• whether the patent is available for licensing.

The removal of revenue and volume disclosure is the change most welcomed by patentees, and it materially reduces the commercial sensitivity of the filing.

Rule 131(2) allows an extension of up to three months on a request in Form 4 with fees. Beyond that, a request under Rule 138 may be available for a further period of up to six months, again on payment.

On consequences, the position changed on 1 August 2024, when the intellectual property provisions of the Jan Vishwas (Amendment of Provisions) Act, 2023 came into force:

• Failure to furnish information under Section 122(1) now attracts a penalty of up to INR 1,00,000, with a further penalty of INR 1,000 for each day the failure continues. The earlier fine of up to INR 10,00,000 no longer applies.

• Furnishing false information under Section 122(2) has been decriminalised. Imprisonment has been removed and replaced by a penalty of 0.5% of total sales, turnover or gross receipts as computed in the audited accounts, or INR 5 crore, whichever is lower. For a company of any size, this is a far heavier exposure than the penalty for simply not filing — accuracy matters more than punctuality.

These penalties are now determined administratively rather than through the criminal courts. The Patents (Amendment) Rules, 2025, notified on 25 November 2025, inserted a new chapter governing adjudication of penalties and appeals: complaints are filed electronically before an adjudicating officer in Form 32, with appeals to the appellate authority in Form 33.

It is a relevant input, not a trigger. Under Section 84, any interested person may apply for a compulsory licence at any time after three years from grant, on grounds that include the patented invention not being worked in the territory of India. Form 27 filings form part of the public record an applicant would rely on.

The practical answer is not to leave the form blank or to file it carelessly, but to state the position accurately and to record the steps being taken towards working — including licensing availability, importation, and regulatory or market-entry constraints where these explain the position.

India offers both, and they are separate proceedings before the Patent Office.

Pre-grant opposition (Section 25(1)) may be filed by any person, at any time after the application is published and before a patent is granted. It is a representation to the Controller.

Post-grant opposition (Section 25(2)) may be filed only by a person interested, as defined in Section 2(1)(t), and only within twelve months from the date of publication of the grant. It is an inter partes proceeding, with a statement and evidence, an Opposition Board constituted under Section 25(3), and a hearing.

The grounds available are the same eleven grounds in both provisions — including wrongful obtaining, prior publication, prior claiming, prior public knowledge or use, obviousness, subject matter that is not an invention or is not patentable under the Act, insufficiency of description, incorrect or false information under Section 8, and non-disclosure or wrongful mention of the source or geographical origin of biological material.

Three changes of practical significance took effect on 15 March 2024:

An official fee is now payable. Pre-grant opposition was previously free. The fee is INR 4,000 for a natural person, startup, small entity or educational institution, and INR 20,000 for others.

A maintainability filter has been introduced. Under the amended Rule 55(3), the Controller must first consider whether a prima facie case is made out before notifying the applicant at all. If no prima facie case is made out, the Controller notifies the opponent and passes an order recording reasons for refusal within one month. The opponent may request a hearing before that order is passed, in which case the order follows within one month of the hearing.

Timelines have tightened. Where the representation is found maintainable, the application is taken up under the expedited examination procedure in Rule 24C. The applicant's reply statement and evidence are due within two months of notice, reduced from three.

Taken together, these changes raise the threshold for serial and tactical pre-grant filings, which were a recognised source of delay.

The notice of opposition is filed within twelve months of publication of grant. The Controller then constitutes an Opposition Board, which examines the opposition and submits a recommendation. Under the amended Rule 56(4), that recommendation is now due within two months rather than three. The Controller then hears the parties and decides.

Overall duration remains materially longer than the rule-based timelines suggest, and depends on the office concerned, the volume of evidence and any interlocutory applications.

There are four, and they are not mutually exclusive:

1. Pre-grant opposition — cheapest and available to anyone, but now subject to a maintainability filter and a fee, and it delays rather than concludes.

2. Post-grant opposition — a full evidentiary proceeding before the Patent Office, but the twelve-month window is short and easily missed if grants are not being monitored.

3. Revocation under Section 64 — before the High Court, without the twelve-month constraint.

4. Counterclaim for revocation in an infringement suit, which is the usual defensive route once proceedings have begun.

The choice turns on timing, on whether you want the patent narrowed or removed, on the strength of the prior art, and on whether you would rather be visible to the patentee at this stage. Watch services on published applications are what make options 1 and 2 realistically available.

Software is not excluded as such. Section 3(k) provides that a mathematical or business method, a computer programme per se, and an algorithm are not inventions within the meaning of the Act. The qualifier "per se" is what does the work: it excludes the programme considered on its own, not every invention that happens to be implemented in software.

What is required is a technical contribution — a technical problem addressed by technical means, producing a technical effect that goes beyond the ordinary operation of a general-purpose computer. Indian courts have consistently taken this approach, and the Delhi High Court's decision in Ferid Allani v. Union of India remains the point of departure for the technical effect analysis.

The Office of the Controller General notified the revised Guidelines for Examination of Computer Related Inventions, 2025 on 29 July 2025, following draft versions issued in March and June 2025. They replace the 2017 Guidelines.

The main features are:

• A dedicated chapter on jurisprudence, drawing together the Indian case law on Section 3(k) — an unusual and welcome inclusion in an examination manual.

• A step-wise methodology for assessing Section 3(k), supported by flowcharts, so that each of the four exclusions is addressed in a defined sequence rather than as a single blanket objection.

• Annexure I, a non-exhaustive set of worked examples showing allowable and non-allowable claimed subject matter under each of the four heads, with reasoning.

• Express treatment of emerging technologies, including artificial intelligence, machine learning, deep learning, blockchain, cloud computing and quantum computing.

• An expanded working definition of "algorithm", drawn from the Madras High Court's decision in Microsoft Technology Licensing LLC v. Assistant Controller of Patents and Designs.

• A firmer line on sufficiency of disclosure, addressed below.

The 2025 Guidelines frame sufficiency as two questions: what the invention is, and how it is implemented.

For the "what", the specification is expected to describe each feature, with drawings for hardware-based inventions and flowcharts or equivalent for methods, together with the relationships and connectivity between components and the output or intermediate results produced. For the "how", the applicant is expected to disclose the best known method of performing the invention.

In practice, for an AI or ML invention this means going beyond naming a model architecture. Set out the training and inference steps, the data flow, the interaction with hardware, and — most importantly — articulate the technical problem being solved and the technical effect achieved, in the specification itself rather than for the first time in response to a First Examination Report. Applications drafted for another jurisdiction and filed unchanged in India are where Section 3(k) objections tend to become difficult to answer.

Source code is not required.

No, and the distinction is worth understanding before filing.

A claim to a method of doing business remains excluded regardless of how it is implemented, and adding conventional computing hardware does not rescue it. The Delhi High Court took this view in OpenTV Inc. v. The Controller of Patents and Designs. Wrapping a commercial or administrative process in technical language does not change its character.

A machine learning invention, by contrast, may well be patentable where it produces a technical effect — improved processing efficiency, reduced memory footprint, better signal or image quality, more reliable control of a physical system. The question is what the invention improves, not what field it is deployed in.

The Act contemplates a natural person. "True and first inventor" is defined in Section 2(1)(y), and the framework of Sections 6 and 28 assumes a human inventor capable of holding and assigning rights. Applications naming an AI system as the sole inventor have not been accepted by the Indian Patent Office, and there is no Indian judicial decision displacing that position.

Inventions made using AI tools are a separate matter and are patentable in the ordinary way, provided a natural person can properly be named as the inventor. Where AI tools have been used substantially in the inventive process, it is worth documenting the human contribution contemporaneously.