Patent

This page explains patents and industrial designs in plain terms: the law, the forum, the documents and the usual steps. Legals365 is the legal platform of Advocate B.K. Singh and associates, based in Delhi NCR.

In short. An Indian patent under the Patents Act 1970 protects an invention that is new, inventive and industrially applicable. File a provisional first if needed, the complete specification within 12 months, and request examination within 31 months of priority. A patent lasts 20 years from filing. A design registration under the Designs Act 2000 lasts 10 years, extendable by 5.

Patents and designs protect two different things. A patent protects how something works: a new machine, process, composition or technical improvement. A design registration protects how something looks: the shape, pattern or ornamentation of a product judged by the eye. Many products need both, and a fair number need neither, because what really gives them value is a brand, a trade secret or a speed-to-market advantage.

This page explains when a patent or design is worth pursuing, how the Indian process runs from search to grant, how to answer the examiner, what happens in pre-grant and post-grant opposition, how to keep a patent alive, and how to enforce it or defend against an infringement claim. It is written for inventors, startups, manufacturers, research institutions and foreign applicants alike, and points out where the route differs between them.

Law

Patents Act 1970 and Patents Rules 2003 (amended in 2024); Designs Act 2000 and Designs Rules 2001.

Office

Indian Patent Office, with branches at Delhi, Mumbai, Kolkata and Chennai; Delhi NCR applicants file with the Delhi branch. Design applications are examined at the Kolkata office but can be filed online.

Key time limits

Complete specification within 12 months of a provisional; request for examination within 31 months of priority; reply to the first examination report within 6 months, extendable by 3; post-grant opposition within 1 year of publication of grant.

Term

Patent: 20 years from filing, subject to annual renewal fees from the third year. Design: 10 years from registration, extendable once by 5 years.

Enforcement forum

Patent infringement suit in a court not lower than the District Court, transferred to the High Court if validity is challenged by counterclaim; Delhi High Court IP Division for higher-value suits. Design piracy suits in the district or High Court as the law provides.

Documents

Description and drawings of the invention, prior art search, inventor and applicant details, proof of right to apply (assignment from inventors), power of attorney, startup or MSME certificate for lower official fees.

What a patent protects and what it does not

A patent gives its owner the right to stop others from making, using, offering for sale, selling or importing the patented product, or using the patented process, in India for 20 years (section 48). In exchange, the invention is published in full. Once the term ends, anyone can use it. That trade-off is the first thing to think about: if your advantage is a process that competitors cannot reverse engineer, keeping it secret may protect it longer than a patent would.

An invention qualifies under section 2(1)(j) if it is new (not published or used anywhere in the world before the filing date), involves an inventive step (a technical advance or economic significance that is not obvious to a person skilled in the field), and is capable of industrial application. All three are tested strictly, and the inventive step is where most applications are fought.

Section 3 lists what is not an invention at all. The ones that matter most in practice are section 3(d), which excludes new forms of known substances unless they show enhanced efficacy; section 3(k), which excludes mathematical methods, business methods, computer programmes as such and algorithms; and section 3(h) and 3(i), which exclude agricultural methods and methods of treatment of humans or animals. Software-related inventions can still be patented where they produce a technical effect beyond the programme itself, but the claims must be drafted with that in mind.

What a design registration protects

A design under the Designs Act 2000 is the features of shape, configuration, pattern, ornamentation or composition of lines or colours applied to an article, which appeal to the eye in the finished product. It does not cover how the article works, any mode of construction, or anything that is purely functional. It also excludes trademarks and artistic works as such. So the shape of a bottle, the pattern on a fabric or the look of a mobile phone cover can be registered; the mechanism inside a lock cannot.

To be registered, the design must be new or original, must not have been published anywhere in the world before the filing date, and must be significantly distinguishable from known designs or combinations of them (section 4). This is why the most common mistake with designs is showing the product at a trade fair, on social media or to buyers before filing. Prior publication by the designer himself can destroy novelty.

Registration gives the owner copyright in the design, meaning the exclusive right to apply it to the registered class of articles, for 10 years, extendable once by 5 years (section 11). India follows the Locarno classification of articles. Protection is limited to the class registered, so a design registered for lamps does not cover the same shape used on a vase.

Patent and design compared

Patent search before you file

A patentability search checks whether the invention is already known, in patents or in other literature anywhere in the world. Indian patent records are searchable on the InPASS database, and international patent databases cover most of the rest. A good search also looks at journals, product catalogues and standards. The aim is not just to find an exact match but to see how close the prior art comes, because that decides what you can claim and how much the examiner will push back.

A freedom-to-operate search is different. It asks whether your product would infringe someone else's live patent in India, regardless of whether your own invention is patentable. A company launching a product in a crowded field, such as pharmaceuticals, electronics or automobile components, needs this before investing in tooling, because an injunction after launch is far more expensive than redesigning before it.

When Advocate B.K. Singh's team reviews an invention disclosure, the first thing checked is whether the inventor has already published it, pitched it in a competition, put it on a crowdfunding page or sold samples. Many patentable ideas are lost this way, and the grace periods in sections 29 to 31 apply only in limited situations such as certain government-notified exhibitions and papers read before learned societies.

How a patent application moves from filing to grant

The stages below apply to Indian applicants filing first in India. Foreign applicants usually enter through the PCT national phase or a convention application, but the examination stages are the same.

1. File a provisional or complete specification

   A provisional specification describes the invention and secures a filing date while development continues. The complete specification, with claims that define the protection, must follow within 12 months or the application is deemed abandoned. If the invention is ready, file the complete specification straight away.

2. Settle the applicant and inventors

   The applicant must be the inventor or an assignee. If a company files for an employee's invention, obtain a written assignment from each inventor and file proof of right. Disputes about who owns an invention are far harder to fix after grant.

3. Publication

   The application is published 18 months from the priority date, or about a month after a request for early publication. Only after publication can you claim damages for later infringement, and only once the patent is granted can you sue.

4. Request examination

   Examination is not automatic. File a request within 31 months of the priority date, for applications filed after the March 2024 amendment. Startups, small entities, women applicants and some others can request expedited examination.

5. Answer the first examination report

   The examiner issues a report listing objections on novelty, inventive step, section 3, clarity and formalities. You have six months to place the application in order, extendable by three months on request. Amend claims, argue, and file a technical explanation or expert affidavit if needed.

6. Attend the hearing and receive the decision

   If objections remain, the Controller fixes a hearing, usually online. Written submissions must be filed within the time allowed after the hearing. The Controller then grants or refuses the patent; a refusal can be appealed to the High Court.

Before filing abroad, an Indian resident must either file in India first and wait six weeks, or obtain foreign filing permission under section 39. Breaching this can lead to the Indian application being treated as abandoned and to penalties.

Drafting the claims: where patents are won or lost

The claims are the legal boundary of the patent. Everything outside them is free for competitors. Claims drafted too broadly get rejected for lack of novelty or inventive step; claims drafted too narrowly get granted but are easy to design around. Good drafting builds layers: a broad main claim, followed by dependent claims that add features one at a time, so that if the main claim falls, something valuable survives.

The description must support every claim and disclose the best method of performing the invention known to the applicant (section 10). Hiding the real working example to keep it secret is a ground for revocation. Drawings, experimental data and comparative results matter a great deal, especially in chemistry and pharmaceuticals where section 3(d) requires proof of enhanced efficacy over the known substance.

Claims for software-related, artificial intelligence and business-process inventions need particular care in India. The Patent Office follows guidelines on computer-related inventions, and claims framed as a method of doing business or an algorithm are refused. Framing the claim around the technical problem solved and the hardware interaction, with a clear technical effect, gives the application a fair chance.

Pre-grant and post-grant patent opposition

Anyone can file a pre-grant representation under section 25(1) after publication and before grant, on the grounds listed in that section, such as lack of novelty, obviousness, non-patentable subject matter, insufficient disclosure or failure to disclose foreign filings. After the 2024 amendment, the Controller first checks whether the representation is maintainable on its face, and the applicant then has two months to reply.

After grant, any interested person can file a post-grant opposition under section 25(2) within one year of publication of the grant. This goes before an Opposition Board, which examines the evidence and makes a recommendation, followed by a hearing before the Controller. Section 64 also allows a petition for revocation before the High Court, or a counterclaim for revocation in an infringement suit, at any time during the patent's life.

For a competitor, opposition is the cheapest way to clear a weak patent out of the way. For an applicant, a pre-grant representation often reveals prior art the examiner missed, and the right response is usually to narrow the claims rather than defend an overbroad version that will later fall in court.

Keeping a patent alive: renewals, working statements and restoration

A granted patent must be renewed every year from the third year onwards by paying the renewal fee. If the fee is not paid in time, there is a six-month extension on payment of an additional fee. After that the patent lapses. A lapsed patent can be restored within 18 months under section 60 if the failure was unintentional, but third parties who started using the invention in the meantime may have protection, so do not rely on restoration.

Patentees and licensees must also file a statement on Form 27 about whether the patent has been worked in India. After the 2024 amendment this is filed once every three financial years, within six months of the end of each period, and only needs to state whether the patent was worked rather than detailed quantities and values. Failing to file is an offence and can be used against the patentee.

Non-working matters for another reason. Under section 84, any interested person can apply for a compulsory licence after three years from grant if the reasonable requirements of the public are not satisfied, the invention is not available at a reasonably affordable price, or it is not worked in India. Compulsory licences are rare, but the risk is higher for patents that are held only to block others.

Design registration: filing, objections and cancellation

A design application is filed on Form 1 with representations of the article from different views, a statement of novelty identifying the visual features claimed, and a disclaimer of any mechanical features, trademarks or words shown. The representations must be clear and consistent, because the registration protects exactly what they show. The examiner checks novelty and formal requirements, and may raise objections that must be answered within the time given.

If you filed abroad first, you can claim priority in India within six months of the first foreign filing under section 44. Beyond that, the earlier foreign publication may destroy novelty here. Startups, small entities and individuals pay a lower official fee than large entities.

Once registered, a design can be cancelled on a petition under section 19 by any interested person on grounds such as prior registration in India, prior publication anywhere, lack of novelty, or that it is not a design at all. The registration is renewed after 10 years for a further 5 by paying the extension fee before expiry. After 15 years at most, design protection ends, though some products continue to be protected by trademark or passing off if the shape has come to identify the source.

Key provisions for patent and design work

Patent infringement: suing and defending

A patent infringement suit is a commercial dispute and is filed in a court not lower than the District Court. In practice, almost every patent suit ends up in a High Court, because the defendant usually counterclaims for revocation and section 104 then requires the case to go to the High Court. In Delhi the IP Division of the Delhi High Court hears most patent cases, and it has developed procedures for technical evidence, confidentiality clubs and expert witnesses.

The plaintiff must show that the defendant's product or process falls within at least one claim. Courts read the claims, construe them with the help of the description, and compare them element by element with the accused product. For process patents, section 104A can shift the burden to the defendant to prove its process is different in some situations. Interim injunctions are granted where the plaintiff shows a strong prima facie case, the balance of convenience and irreparable harm, but courts look hard at patents that are new, under challenge, or not worked in India.

A defendant has several tools: arguing non-infringement, attacking validity through revocation, relying on the research and regulatory exemption in section 107A, showing prior use, or offering to deposit a royalty while the case is heard. For a business facing a notice from a patent owner, the first step is a proper claim analysis by someone who understands both the technology and the law, not a quick denial.

Design piracy and composite suits

Section 22 of the Designs Act makes it unlawful to apply a registered design or a fraudulent or obvious imitation of it to articles in the registered class, or to import or sell such articles, without the owner's consent. The owner can sue for damages and an injunction. The statute also sets a fixed sum recoverable for each contravention, subject to an overall cap, but most owners sue for actual damages and an injunction instead, which the court can grant without that limit.

If the defendant raises invalidity as a defence, the suit is transferred to the High Court. The Delhi High Court has allowed a design owner to combine a design piracy claim with a passing off claim in a single suit where the facts overlap, which is useful when a copier imitates both the shape of the product and its trade dress.

Design infringement is judged by the eye of an ordinary purchaser. The question is whether the copy is substantially similar in overall visual impression, not whether every line matches. Side-by-side photographs, samples and evidence of customer confusion carry weight. Keep samples of your launch product and the copier's product with purchase invoices.

Licensing, assignment and employee inventions

A patent can be assigned or licensed, but section 68 requires the assignment, licence or mortgage to be in writing and in a document embodying all the terms, and the transaction must be registered with the Controller under section 69. An unregistered document cannot ordinarily be relied on as evidence of title. Licences should spell out the field of use, territory, exclusivity, royalty basis, minimum payments, improvements, quality control and termination.

Indian patent law has no special employee-inventor statute, so ownership of inventions made by staff depends on the employment contract and general principles. An invention made in the course of employment using the employer's resources usually belongs to the employer if the contract says so, but the employee is still named as inventor. Every company with a research or engineering team should have an IP assignment clause and a short invention disclosure process. Our page on labour and employment law covers employment contracts more generally.

Royalty payments to foreign licensors are current account transactions under FEMA and generally permitted, with tax deduction at source and GST to consider. Check the treatment for your case with your chartered accountant, and see our page on FDI, FEMA and foreign exchange compliance where the licensor is abroad.

Filing outside India: PCT and convention routes

Patents are territorial. An Indian patent does not stop copying in the US or Europe. India is party to the Paris Convention and the Patent Cooperation Treaty. Under the convention route you must file in each country within 12 months of your first filing to claim its priority date. Under the PCT you file one international application within the same 12 months, receive an international search report, and then enter national phases in chosen countries, generally at 30 or 31 months from priority.

The PCT route buys time to test the market and raise funds before paying for national filings, which suits startups. The convention route is faster where only one or two countries matter. Either way, the Indian resident must have filed in India first or obtained permission under section 39 before filing abroad.

Foreign applicants entering India through the PCT national phase file within 31 months of priority, and must keep the Indian Patent Office informed of corresponding foreign applications under section 8. The 2024 amendment simplified this, but non-compliance remains a ground for opposition and revocation, so docket it carefully.

Checklist before filing a patent or design

• Confirm the invention or design has not been published, sold, exhibited or posted online by you or anyone else.
• Run a patentability search, and a freedom-to-operate search if you are about to launch.
• Get written assignments from every inventor or designer, including contractors and co-founders.
• Prepare clear drawings and, for patents, test data showing the technical advantage.
• Decide whether to file a provisional now or a complete specification straight away.
• Check startup recognition or MSME status for lower official fees and expedited examination.
• Docket the 12-month deadline for the complete specification and foreign filings.
• If you plan to file abroad, file in India first or seek foreign filing permission.

Mistakes that cost inventors their rights

• Publishing before filing. Pitch decks on public platforms, conference papers, trade fair displays and product listings can all destroy novelty for both patents and designs.
• Letting the provisional lapse. If the complete specification is not filed within 12 months, the filing date is lost and earlier disclosures by you may now count against you.
• Forgetting to request examination. An application with no examination request within 31 months is treated as withdrawn.
• Claims that describe a business idea. A method of doing business or a pure algorithm is excluded. Frame the invention around its technical effect.
• Missing renewal fees. Patents lapse quietly when the annual fee is missed, and restoration is not automatic.
• Ownership gaps. An invention developed by a contractor or a departing employee without a written assignment invites a dispute that can block licensing and investment.

How the approach differs by applicant

An individual inventor usually benefits most from a careful provisional filing and a frank assessment of whether the invention will earn more than the cost of prosecution and renewals. A startup recognised by DPIIT pays lower official fees and can request expedited examination, which helps when investors want to see a granted patent. An established manufacturer is often better served by a smaller number of strong patents around its core products, plus design registrations for the look of its range.

Universities and research institutions face disclosure pressure from publications and theses, and should file before submitting papers. Foreign companies entering India need a local agent or advocate, careful section 8 compliance and early working-statement planning. Companies that are themselves accused of infringement need freedom-to-operate opinions and a plan for opposition or revocation.

Where the real value lies in a brand or software code, a patent may not be the right tool at all. Our pages on trademark registration and infringement, copyright and intellectual property protection and licensing explain the alternatives, and startups planning funding should also read our page on legal advisory for startups.

Before you file or respond

Patent and design rights are won or lost on dates and documents. File before you disclose, keep the 12-month and 31-month deadlines, answer examination reports fully, and pay renewals on time. If you receive a notice alleging infringement, or find a copier, act on evidence and claim analysis rather than instinct. Contract disputes with licensees or manufacturers may need the commercial court or arbitration.

In patent matters that reach Advocate B.K. Singh's office, the problem is often not the invention but the paperwork: a missing inventor assignment or a disclosure made a month before filing. If you want the specification, report or notice checked before you act, the team of Advocate B.K. Singh at Legals365 can review the papers and tell you the next step.

Frequently asked questions

How long does it take to get a patent in India?

It varies with the field and the Patent Office's workload, but several years from filing is common. Expedited examination for startups and certain other applicants can shorten it considerably. The patent term of 20 years runs from the filing date, not the grant date.

What is a provisional patent application?

It is a filing that describes the invention without full claims and secures a filing date. The complete specification must be filed within 12 months, or the application is treated as abandoned. It is useful when the invention is still being refined.

Can software be patented in India?

A computer programme as such is excluded under section 3(k), along with algorithms and business methods. An invention that uses software to produce a technical effect, such as improving the working of a device or system, can be patented if the claims are drafted around that technical contribution.

What is the deadline to request patent examination?

For applications filed after the 2024 amendment to the Patents Rules, the request must be made within 31 months from the priority date. If no request is filed, the application is treated as withdrawn. Earlier applications follow the older 48-month period.

How much time do I get to reply to a patent examination report?

Six months from the date the first examination report is issued, extendable by three months on request. All objections must be answered and the application placed in order within that time, or it is treated as abandoned.

How long does design registration last?

A registered design is protected for 10 years from registration, and can be extended once by a further 5 years by paying the extension fee before expiry. After that the design falls into the public domain.

Can I register a design after showing my product at an exhibition?

Prior publication anywhere in the world, including by you, can destroy novelty. File the design application before displaying, posting or selling the product. Limited protection exists for certain notified exhibitions, but do not rely on it without advice.

Who owns an invention made by an employee?

There is no special statute, so it depends on the employment contract. Where the contract assigns inventions made in the course of employment to the employer, the company can apply as assignee, with the employee named as inventor. Get written assignments before filing.

Where is a patent infringement suit filed?

In a court not lower than the District Court. If the defendant counterclaims for revocation, section 104 requires the case to go to the High Court. In Delhi, the IP Division of the Delhi High Court hears most patent cases.

Can a granted patent be challenged?

Yes. Any interested person can file a post-grant opposition within one year of publication of grant, or seek revocation before the High Court or by counterclaim in an infringement suit under section 64 at any time during the patent's life.

Do I need permission to file a patent abroad?

Indian residents must either file in India first and wait six weeks, or obtain foreign filing permission under section 39. Filing abroad without either can lead to the Indian application being treated as abandoned and to penalties.

What happens if I do not pay patent renewal fees?

The patent lapses after the grace period. It can be restored within 18 months under section 60 if the non-payment was unintentional, but restoration is discretionary and others who began using the invention in the meantime may have protection.