Introduction

.
The Trade Related aspects of Intellectual Property Rights (TRIPS) Agreement
under the World Trade Organisation (WTO) came into effect in 1995 mandating
all the developing member countries to bring in TRIPS-compliant national laws
within ten years i.e. 2005. With patents featuring as one of the key issues, TRIPS
required the member nations to provide for patent protection, without
discrimination, for any invention (products or processes) in various fields of
technology, provided they pass the tests of novelty, inventiveness and industrial
applicability1. At the same time it required that protection rights be available
and enjoyable without discrimination as to the place of invention and whether
products were imported or locally produced2. The TRIPS Agreement, among
other issues, specifies enforceability and dispute resolution procedures. The
Agreement calls for protecting and enforcing IPR, in a way that promotes
technological innovation, transfer and dissemination to the mutual advantage of
producers and users. In order to address the concerns of developing countries of
possible misuse and prevent IPR holders from charging exorbitant and
commercially unviable prices for transfer or dissemination of technologies, TRIPS
Agreement incorporated particularly Articles 7 and 8. Article 7 identifies that
there is need for ....transfer and dissemination of technology, to the mutual
advantage of producers and users of technological knowledge
conducive to social and economic welfare, and balance of rights and
obligations3 while Article 8 identifies that adoption of measures necessary to
protect public health and nutrition, and to promote the public interest in sectors
of vital importance.., and prevent the abuse of intellectual property rights by
right holders 4. Moreover, The TRIPS Agreement left certain room for the
member nations to modify national legislations to their particular needs and
policy objectives and yet broadly conform to the global TRIPS framework.

Key Issues and Challenges

India, after becoming a member of the WTO, amended the 1970 Patent
Amendment Act in 1999 so as to incorporate benefits for applications from
industries such as drugs and agro-chemicals and provisioning of exclusive
marketing rights therein. The 2002 amendment to this Act made inclusive
changes to the legal establishment, and brought in developments as a result of
Indias WTO and TRIPS associated commitments. After an decree of 2004 and the
Patents Amendment Act of 2005, the product patent was brought with in Indian
legal ambit. The establishment of the WTO and the requirements under TRIPS
pushed the Indian IPR governance structure into introducing phased changes in
the Patents Act 1970, so as to make the policy TRIPS accomodating.
In Indian patent establishment, it has been seen that post WTO and in between
period of 1995 to 2005, filing of patent applications in India increased at a
healthy rate of 15% with the compound average grant rate of 11%.
The Study of the patent topography in India shows that within the post-TRIPS
regime, patenting activities inside India have increased in terms of both filings
& grants but the growth figures are not as good as they were before the year
2005. After 2005, the CAGR in filling was 8% and the growth in grant was
1.3% . And, if we have a look at the shares of domestic fillings to the total
fillings, post 2005, the avg. share was estimated at 18%.
With every new law, post-TRIPS patent establishment has brought new
challenges within India as it involved some important changes in patent laws. As
we have seen, new establishment has seen a new rush in patent filings specially
from foreign companies and dealing with the growing number of applications is
a big challenge. Moreover, the new regime has completely changed the way
Indian patents, establishments looked at striking a balance b/w patent holders
and public. A couple of pending cases in court on important issues like
patentability criteria or compulsory licensing show the challenges new patent
regime faces. Some issues and challenges are discussed below.

1. Issues in Patent Administration

On the basis of intense interaction with the stakeholders, it came to realization
that the key issues in patent administration include pendency, access to the
information, challenges w.r.t. enforcement. The main reason cited for low
pendency is the high workload of the examiners who examine applications. India
has clearly more work load than any other country . Examiners have not only the
task of examination but also administrative tasks such as conducting patent
agent exams, training session etc. Currently the filing of the patent applications
is allowed electronically but does not allow the electronic facility to file for
responses to the objection by the IP office. As an outcome those not residing in
the location where branches of patent offices are present, cause them a great
deal of problems as they need to travel down to the place, to communicate with
examiners or hire the attorneys located in those areas.
Indias patent offices which are already understaffed ,have lost atleast 25 to
30% of their examiners in past 4 years as private companies, which are looking
to strengthen their intellectual property capabilities, lure them with much better
work environment and great salaries.The number of applications filed in the
Indias four patent offices has increased to nearly 300% since 2004 and the
patent grants have risen upto 150%.
Companies like Reliance Industries Ltd, Hindustan Unilever Ltd and Tata Motors
Ltd, and also the IT and pharmaceutical companies, the key patent filers of
India, are hiring the patent examiners for their skill in international patent
searches and drafting patent applications. Also, the poor salaries, peer pressure

and bureaucratic interference can be held responsible for the exits. Temporary
postings of patent examiners for just one year is another reason, also this makes
exits easy for these professionals. Companies are looking to expand their inhouse intellectual property cells, and prefer to recruit the people with
experience. Intellectual property right is new area for the Indian companies and
there is a shortage of people with right skills. Its very common for the firms to
recruit the patent examiners straight from govt. offices for patent applications
drafting.
The Union Ministry of Industry and Commerce agreed on the fact that the patents
grant system is overloaded in India. The avg. no. of examinations handled by an
examiner at patent offices in India is 100 p.a. when compared with 50-80 cases
in the US and Europe, said a recent report by the governments department of
industrial policy and promotion.
Post new product patent regime in India 1 January 2005, the patent applications
of the foreign firms in Indias four patent offices have increased upto 300%, and
the grants by 150%, according to annual report of Controller General of Patents,
Designs and Trademarks, the Union Government Department that administers
and monitors patents. But the department has not made enough changes in the
strength.
Corruption claims
With limited or no transparency in the system, allegations of corruption in the
Indian patent granting process are very common.Since the patent examiners
examination remarks are not accessible to the public, it remains a secret when
they are overruled.
There is a report , widespread collaboration between patent attorneys and IP
officials, and a clear dependency of official examiners and legal
representatives (patent agents) on patent drafting and searches that have been
previously carried out in other national IPR jurisdictions.
Meanwhile, the law firms offer a process that helps companies filing patents in
India. India grants over 50 patents any working day with almost 120 patent
examiners on its roll. This leads to situations where the patent granted in one of
the patent office infringes with other granted in the other.
Examples include court cases b/w Eureka Forbes Ltd and Hindustan Unilever Ltd,
in relation with double patenting of a water purifier technology & the patent of
Bajaj Auto Ltd for a twin spark ignition technology, was questioned by TVS Motor
Co. Ltd.
Major concerns of patent examiner when joining the department the scope for
future growth.
It takes least of 15 years or more for Patent Examiner to be promoted to next
level.
Many positions in patenting offices remain unfilled because of the problems in
the recruitment system.
Patent examination, involves precise scientific study of discovery claim in the
areas of drugs, automobiles,electronics, electrical, chemicals, etc, and hence
requires complete knowledge of the subject. Shortage of patent examiners
puts severe pressure on the present officials,resulting in the improper
examination of patent applications which leads to unjustified
monopoly in markets for essential products, which also includes lifesaving drugs.

2 Compulsory License
The present filing system of patent applications is allowed electronically but
doesnt allow the facility to file for responses electronically to the objections
raised by the IP office. This results in a situation where those not living in vicinity
of patent offices need to go through a lot of trouble communicating with the
examiners . Rights of TRIPS member countries to make the use of compulsory
license in interests of public health have been acknowleged in Doha Declaration
on Public Health. Though TRIPS allow compulsory licensing, it is noticed, that

business advantages are not are not much. Whilst grant of compulsory licence is
itself the exception than the rule, yet corporate strategies do try to safeguard
companies absolutely, through other restrictive methods. Most of the times,
economic and political factors also make it difficult to invoke the basic legal
instruments to access these services (Nanda & Srivastava, 2009). The courts in
India, even otherwise, have relied on validation of compulsory licencing on the
grounds of public welfare.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)
also sets out specific provisions that shall be followed if a compulsory license is
issued, and the requirements of such licenses. All significant patent systems
comply with the requirements of TRIPs. The principal requirement of the issue of
a compulsory licensing is that the attempts to get the license of reasonable
commercial terms must fail over a reasonable periods of time and when the
refusal to grant the licensing leads to the inability in exploitation an important
technological advance, or to exploit a further patent.
Unfortunately, the developing countries lost, as their generic pharmaceutical
industries could not reverse-engineer the costly products of foreign research
and development under the shield of domestic laws that ignored pharmaceutical
patents, later they won a great battle pertaining specifically to the question of
compulsory licenses, each attempt to limit a states power to issue compulsory
licenses has invariably unresulted in a strengthening of the same power at
the international level. The Policymakers and the scholars should also
note that two European Union countries, France and Belgium, recently
adopted new and sweeping powers to grant compulsory licenses of
patented pharmaceutical inventions for public health purposes.
The worlover patenting standards adopted by the TRIPS Agreement, threatened
to adversely future supplies of the patented drugs at the prices people in poor
countries could afford by increasing the prices patentees would charge rich
patients in these countries.In reality, most of the countries lacked the capability
to manufacture the drugs , or for that matter obtain the key ingredients, in which
case granting of the compulsory license amounts to empty gesture for lack of
access to non-infringing generic substitutes.
Although, the Good Samaritan countries that possessed manufacturing capacity
might be willing to assist a needy country by issuing compulsory licenses of their
own, with a view to exporting supplies of the drug in question for this purpose.
But that type of assistance was limited by article 31(f) of the TRIPS Agreement,
which expressly required products manufactured under a compulsory license to
serve predominantly for the supply of the domestic market (thus limiting such
exports literally to 49.9 per cent of the total output). Moreover, even middleincome countries with growing manufacturing capacity, such as India and Brazil,
might themselves need a drug that they could not manufacture locally, in order
to temper a patentees prices. In that case, any willing supplier to them if one
could be found in a developed country would likewise be bound by the
limitation on exports that article 31(f) imposed.
The tensions generated by these prospects for rising prices of essential
medicines came to a head in the late 1990s, at the very time when the
developed countries wanted the developing countries to agree to yet another
round of Multilateral Trade Negotiations, to be known as the Doha Round. The
latter countries made removal of constraints on their public health authorities
under the TRIPS Agreement a sine qua non of their participation in that Round.
The outcome was a momentous Ministerial Declaration on the TRIPS Agreement
and Public Health of 2001, which, in paragraph 4, affirmed that this Agreement
can and should be interpreted and implemented in a manner supportive of WTO
Members rights to protect public health and, in particular, to promote access to
medicines for all.16
The Ministerial Declaration expressly reconfirmed many of the key flexibilities set
out in the TRIPS Agreement,17 including the power of WTO Members to grant
compulsory licenses and the freedom to determine the grounds upon which such

licenses are granted,18 a freedom that the originator pharmaceutical companies

had continued to question despite the clarity of the TRIPS language itself. The
Declaration then expressly addressed the constraints on exports set out in article
31(f ) of TRIPS. In paragraph 6, it provided a mandate for establishing legal
machinery to enable countries lacking the capacity to manufacture generic
substitutes for costly patented medicines under domestically issued compulsory
licenses to obtain imports from countries able and willing to assist them without
interference from the relevant patent holders.

3. Patentability Criteria
There appear to be tendencies to create piles of patents, which are successively
filed every 20 years so as to create a superstructure of knowledge, patented by
the originator. Argumentatively analysing these business strategies, it can be
realised that such stockpiling of patents brings down The real space within which
generic drugs industry could innovate. Such piling up leads to a lockdown of
knowledge space and is likely to have telling effects on research energies.
Section 3(d) of the Indian Patents Act does not allow ever-greening, as it defines
inventions as to be those that improve the known efficiency of an existing
formulation or those that involve discovery/invention of an entirely new property.
However, this provision is under challenge in the Supreme Court of India.
The term Patent as commonly understood by us means an exclusive right
granted by the appropriate government to the person who had made an
invention, to use that invention as well as sell it for a fixed period of time
The grant of such a patent to the inventor of any invention is only for a fixed or
limited period of time and thus after the expiry of such period, the patented
invention passes on to the public domain.
Now ,since a patent gives an exclusive right to the person to do whatever he
wants to do with his invention for his own benefit to the exclusion of others for a
particular period of time ,therefore it is necessary to have a particular criteria to
judge whether a particular invention by any person should be patented or not
.Therefore ,it is necessary to observe that all inventions are not patentable and
thus an invention can only be patented when it fulfills the criteria for
patentability as per the law .
Although the Patentability Criteria differs from country to country depending on
the law of the land, there exists some commonality between them. In order to be
patentable, an invention must be novel, have utility, and differ from what skilled
users might expect. These standard requirements are given different shapes by
the legislative and judicial systems of different countries. Now, these criteria are
interpreted in different countries as follows:
Patentability Criteria under TRIPS:
TRIPS is one of the most contentious agreements of the WTO which has been
debated world-wide in the developed and developing countries and also in
important international institutions.
The TRIPS Patents System is based upon (a). The main features of the TRIPS
patent system are as follows: TRIPS provides for patent protection for any
inventions whether products or processes in all fields of technology provided that
they are new, involve an inventive step and are capable of industrial
application.
Now since joint statement presented by the multinational associations of USA,
Europe and Japan to the GATT Secretariat in June 1988 during the Uruguay Round
Negotiations India is one of the member of the WTO ,therefore it is under a

binding obligation to incorporate the provisions of TRIPS in their domestic laws

and therefore with the enactment of Patents (Amendment) Act 2005, the
amending process of Indian Patents Act 1970 to bring it in line with the TRIPS
Agreement has been completed by the government by incorporating the
following provisions in the Patents Act,1970
Clause (j) in Section 2, which defines patentable invention as "invention means a
new product or process involving an inventive step and capable of industrial
application". The earlier two amendments were enacted by Parliament during
1999 and 2002.
Clause(ja) in section 2 which defines "inventive step" as a feature of an invention
that involves technical advance as compared to the existing knowledge or having
economic significance or both and that makes the invention not obvious to a
person skilled in the art
Clause (l) in section 2 which defines "new invention" as any invention or
technology which has not been anticipated by publication in any document or
used in the country or elsewhere in the world before the date of filing of patent
application with complete specification, i.e. the subject matter has not fallen in
public domain or that it does not form part of the state of the art.
Thus from the above, it is clear that under the Indian Patent Law, an invention in
order to be patented should fulfill the following three conditions, these are:
1 Invention must be New
Novelty is a fundamental requirement and an undisputed condition of
patentability. An invention will not be novel if it has been disclosed in the public
through any type of publication anywhere in the world. For example, a lot of hue
and cry has been raised in India when the patent was granted to turmeric
products in United States on the ground that it is not new and it is already
published in Indian Texts and use of Turmeric preparations has been made in
India since times immemorial. Further .the Newness of an invention depends
upon the state of existing knowledge as well as the similar inventions in that
particular field.
Prior use of invention before filing an application for patent can also destroy
novelty. Oral description of the invention in some seminar/conference can spoil
novelty if the patent application is not filed within a stipulated time period, which
is six months in India.
2 Useful
An invention even though it is new as well as non obvious to a person skilled in
the art to which it relates cannot be granted a patent unless and until it is of
some use to the Mankind .Therefore, a useless invention though may be new and
non obvious will not be granted the status of a patent.
3) Non Obvious to the person skilled in the art to which the invention relates to:
The Invention by any person in any field of art shall be of such a nature that a
person, who is also skilled in the art to which this invention relates, shall not be
able to come to that invention unless he is acquiring some special mental skills.
The term Patent as commonly understood by us means an exclusive right
granted by the appropriate government to the person who had made an
invention, to use that invention as well as sell it for a fixed period of time.
The above mentioned exclusive right to use as well as to sell the invention is
granted to such inventor, so as to fulfill the objective of enactment of the Patents
Act, 1970 which is also observed by the Honble Supreme Court in the case of
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries , i.e to
encourage Scientific research, new technology and industrial progress. The grant
of such exclusive right to the inventor for a limited period of time to use and sell
his invention for monetary gain encourages the common masses to make new

inventions for the benefit of the country and the society.

The grant of such a patent to the inventor of any invention is only for a fixed or
limited period of time and thus after the expiry of such period, the patented
invention passes on to the public domain.
Now ,since a patent gives an exclusive right to the person to do whatever he
wants to do with his invention for his own benefit to the exclusion of others for a
particular period of time ,therefore it is necessary to have a particular criteria to
judge whether a particular invention by any person should be patented or not
.Therefore ,it is necessary to observe that all inventions are not patentable and
thus an invention can only be patented when it fulfills the criteria for
patentability as per the law .

4 Patent validity
It is also interesting to note that grant of Patent under Indian law does not
tantamount to validity of the said patent. As per the provision of section 13(4) of
the Patents act, the grant of patents by the patent authority does not confirm the
validity of a patent and as such no liabilities are incurred by the central
government or any agencies thereof. One of the reasons why the Drug Controller
under the Drugs and Cosmetics Act is not charged with duties to look into the
validity of patent before granting marketing approvals is based on this section,
since if the Drug Controller is charged contrarily, it leads to presumption that a
patenting implies validity, something which is specifically denied vide sec 13(4)
of the Patent Act. It is also not clear why Drug Controller should also look at
validity of patents when other regulators of this nature do not look into such
issues.
Patent protection is territorial right and therefore it is effective only within the
territory of India. However, filing an application in India enables the applicant to
file a corresponding application for same invention in convention countries,
within or before expiry of twelve months from the filing date in India. Therefore,
separate patents should be obtained in each country where the applicant
requires protection of his invention in those countries. There is no patent valid
worldwide.
India on the other hand has multiple forums where a patent can be challenged.
See Prashants post. It is however, surprising to note that the decisions of the
same agency (our patent office) that grants trademarks are given deference and
the act provides for a presumption that a granted trademark is valid.
Under administrative law, the government usually takes the expert advice of the
authorities that are vested with the power to make decisions under its domain.
Examples of such agencies include municipal authorities, education boards,
revenue authorities, defense etc. With the exception of the patent office, there is
no other authority whose decisions are inherently suspect or are presumed to be
invalid despite it being the subject expert. To be clear, our patent law/rules and
the interpretation in the manual do not specifically state that a patent is
presumed to be invalid but it does state that one consequence of a grant of a
patent is that it can be challenged under a post grant opposition. This (absence
of a specific statement) is the same as stating that there is no presumption of
validity or patents are presumed to be invalid.
To quote: The examination and investigations required under section 12 and
this section shall not be deemed in any way to warrant the validity of any patent,
and no liability shall be incurred by the Central Government or any officer thereof
by reason of, or in connection with, any such examination or investigation or any
report or other proceedings consequent thereon.

Additionally it was held that registration of patent does not entitle

any presumption of validity in favour of patent in spite of investigation before
its registration.,
.
If I were to take a guess, I would state that even though we have moved to the
new patent law, the ideology remains rooted in a different era where patents
were inherently suspect, and perhaps a hangover of the post-colonial, newly
independent decades.

5.Petty Patents or Utility Model of Patents

It may be useful to examine the case for utility model of patents or petty patents
in the context of to take advantage of patent protection. The TERI survey, also
suggests that utility patents perhaps is a sensible idea for SMEs who may be
allowed to protection of their small innovations with lower level of rights. Since
there is a demand for data protection and data exclusivity, it would be useful to
look at them and the related issue of ever greening of patents as the possibility
of big companies promoting SMEs to work as their front soldiers cannot be ruled
out in the Indian context.
Utility Model
Like patents, utility model is an exclusive right granted to an invention. This
allows the grantee, the right to prevent others from commercially using the
protected invention, without the grantees authorization, for a limited period of
time. It is very similar to patents and are often referred to as, petty patents or
innovation patents.
Though on the outset, both patents and utility model appear similar, there are
many differences between the two, which are given below:
As compared to patents, the requirements of obtaining a utility model differ. To
obtain patent protection, patents are required to satisfy both novelty and nonobviousness requirements of patentability among other requirements. Utility
models are supposed to satisfy the novelty requirement and the non-obviousness
requirement for utility model is low or absent.
The term of protection for utility model is usually between 7 to 10 years, based
on the jurisdiction.
In most jurisdictions offering utility model protection, the applications are not
examined prior to registration. This significantly reduces the duration required for
registration.
As compared to patents, utility models are cheaper to obtain and maintain.
In some jurisdictions, utility model protection can only be obtained for certain
fields of technology and only for products but not for processes.
Who should apply for utility model protection
Primarily, utility model protection may be sought under the following
circumstances:
For inventions that do not reach the same level of inventiveness, which is
required for patent protection.
For inventions that require faster registration.
For innovations which are of incremental nature and do not meet all the
requirements of patentability.
When the life cycle of the invention is short and/or if, the profits are not able to
cover patenting costs.
For minor improvements and adaptations of existing products.
The innovation is tangible and/or mechanical in nature.
Utility model protection in India

Though utility model protection would be of great help to many, India, at present
does not offer protection under utility model. At present, technological
innovations can only be protected in India under patents.
Utility patents are short-term rights granted for inventions that may not qualify
for many aspects of patentability like inventive-step or non-obviousness but are
inventions in their own right. Like a patent, utility model is an exclusive right
granted to an invention. In the utility model, the exclusive right is granted for a
short period of time like 6 to 19 years. The stringent norms of patentability are
relaxed for utility patents. As this is very similar to patents, it is often called
petty patents or innovation patent.
The first draft of National IPR Policy recommends implementing Utility Patents in
India. In a country like India there are many original inventions that might not
comply with laws of patentability yet is inventive. These inventions are
commonly found among Micro, Small and Medium Enterprises (MSMEs) and
unorganized and informal sectors of India. MSMEs account for about 45% of
manufacturing output yet their IP assets are limited. To protect these small
inventions from illegal use, Utility Model should be implemented in India.
The objective of this patent law is to give exclusive ownership for a limited time
and to encourage innovations. This can be an incentive for the creator who
invents his efforts in creating something new. MSMEs play a major role in the
development of a country. Indian economy largely depends on inputs from SMEs
and MSMEs. These sectors are in the forefront of innovations.
SMEs and MSMEs are encouraged to innovate
This will spark interest in research on incremental innovations
There is less delay in granting patents
Analyst is the online IPR solutions provider that can help you get a patent easily.
All you have to do is login to the website and fill in the details. There are expert
professionals who would take your application for further evaluation. From
application filing till granting of patent, Analyst will assist you all the way
through. Patent your invention to protect it from illegal and unauthorized use.

6. Awareness and capacity of stakeholders

Micro Small and Medium Enterprises (MSME) play a vital role in the Indian
economy and are considered an engine of economic growth and equitable
development which touch upon the lives of the most vulnerable, most
marginalized and the most skilled. They address the national priorities of
employment generation (with the sector being the second largest employer after
agriculture and creating this employment at low capital cost), poverty reduction
and regional imbalances. As per the available statistics from the 4th Census
(2006-07) of MSME Sector there were an estimated 59.7 million persons spread
over 26.1 million enterprises. The MSMEs in India provide employment to an
estimated 31.2 million people in the urban and rural areas of the country. The
sector is also a significant contributor to the output/income of the manufacturing
sector and towards the gross national product (GNP). It is estimated that in terms
of value, MSME sector accounts for about 45 per cent of the manufacturing
output, 6% of GDP and around 40 per cent of the total exports of the country
(MoMSME, GoI).
Despite playing such an important role for the Indian economy, the SME sector
has not exploited IP rights to protect their innovation. It is commonly perceived
by the SMEs that high-level technology such as revolutionary inventions can
only be patented. Indian SMEs are not coming forward to adopt IPR as a business
strategy. Stakeholders feel that one of the most important reasons behind this is
widespread lack of awareness about IPR. SMEs sometimes fail to understand that
registering IP can consolidate market position; provide new revenue streams
through licensing, franchising or sale; increase investment funds to develop and

market new products, and substantially increase negotiating power through cross
licenses or joint venture agreements.
The TERI survey suggests that the awareness of entities in solar power sector,
wind power sector and pharmaceuticals sector is lower in terms of new and
upcoming issues, aspects and debate within the IP domain. The agrobiotechnology industry seems to be more aware on issues of utility model of
patents, ever-greening and other discriminatory potential of patent regime.
Issues of access also get highlighted since the results from the TERI survey show
a dependence on specialized assistance for patent filing. In order to make patent
protection easy for SME stakeholders, patent administration needs to be brought
down from its abstruse levels and made more easily comprehensible by the
stakeholders who might not have specialised knowledge and yet are much more
informed as a result of learning from market realities. It is also interesting to note
that many of them are not even aware that if they do not protect their
knowledge or publish it somehow then somebody else can patent and they can
be deprived of their own knowledge as a consequence.
7 Cost of obtaining Patent and its Protection
There are, however, other challenges that concern questions directed to the
design and operation of the patent system. One of the criticisms expressed
against the patent system is that the cost of obtaining patent protection is too
high that the patent system is not affordable to everybody, offering no equal
opportunity to access it. Not only the cost of obtaining a patent, but also the cost
of maintaining the rights and the potential costs arising from patent litigation
have an influence on the functioning of the patent system.
For the SME sector, as concluded from the survey, it is clear that protecting their
patents in an international regime will be more costly. This in light of the fact that
even for domestic patent protection, self-filing is not being preferred and need
for specialised help is evident. Such services when obtained in foreign domains
will be at greater costs and associated risks due to novelty of the regulations
endemic to that system.

How much does getting a patent in India costs? There is no precise and
accurate answer to this question as cost for a obtaining patent is dependent on
mutiple factors... What best we can have isrange for costs involved in...
There are two elements for cost of getting patent / filing patent in India:
The Government fees for Forms, requests and renewals.
Professional Charges for patent professional, patent agent / attorney
Government fees too, are different for an individual inventor and a company. and
fees for patent application also defers based on number of claims and pages in
the specification. So, a lot of factors need to be considered when talking about
costs involved in getting patent.
Yet to give you an idea,the cost to file a patent is approximately Rs. 55,000 to
1.5 Lac. This is assuming that you have hire patent (agent) professionals for
patent research and writing.
The link below is the fees structure mentioned at the patent office website in
India.http://ipindia.nic.in/ipr/patent/patent_formsfees/Fees.pdf
If you are filing patent on your own, without help from patent agent, then it can
cost much lesser as only fees you are paying is government fees for patent filing
and prosecution.
Here is how you will need charges as per stages in patent filing. We are assuming
you have hired a patent professional in helping you with patent filing, which is
recommended and makes this all patenting efforts worthwhile with his
experience and expertise in techno-legal writing.

Stage 1: invention disclosure

This is initial phase when you disclose your invention to the patent professional
(patent agent) by signing a Non disclosure agreement. Here you should submit
each know fact about your invention, description diagrams and experimental
results (if any). Hold nothing back.
Stage 2: Novelty search (patentability search)
The professional charges at this phase range from (Rs 10,000 to Rs.20,000 )
In this phase, patent professional performed an extensive search for prior art in
all possible databases for patent, articles, thesis etc... And builds a patentability
search report based on closest prior art found for your invention.
Stage 3: Decide to file patent application
On reviewing the patentability search report and discovered closest prior arts for
your invention you can take a decision whether to go ahead with patent
application filing.
Your invention needs to have inventive step as compared with existing prior
art to be able to qualify for a patent. The inventive step is achieved when your
invention has either technical advance oreconomic significance or both
over existing prior arts.
When you decide to go ahead with patent filing next step is writing patent
application also called as patent drafting.
Stage 4: Patent drafting (patent writing)
Patent drafting charges range from Rs. 20,000 to 30,000 (professional fees)
Drafting a patent application is a specialized job and requires both technical
(field of invention) and legal (Indian patent act) understanding.
As you may have heard, patent is a techno-legal document. Many inventors
trying to write patent application on their own writes it from completely technical
perspective. Writing patent application as a technical document without
considering legal aspect may be a mistake which can make your application not
worth a lot. And all the efforts you took for research and development can go
waste.
Hence, right patent professional (patent agent) with appropriate experience can
remarkably add value to patent application.
Stage 5: Filing Patent application
Patent filing involves patent office fees as explained in table below
When you done with the review of patent drafted and satisfied with the scope
and technical details in the patent application, you can file the patent application
is prescribed manner. That is with appropriate forms with appropriate fees. You
need to pay fees of Rs. 1600 or 4000 0r 8000 (based on type of applicant) while
submitting the patent application in patent office.
If you do not file request for early publication (fees mentioned in table below) the
patent application will be published on expiry of 18 months.
Stage 6: Request for Examination
Request for examination fees is Rs. 4000 or 10000 or 20000 (based on type of
applicant)
The request for examination is to be made within 48 months from the date of
filing the patent application, along with prescribed form and fees. This is the
request made to Indian patent office to examine you patent application.
Stage 7: Responding to objections in examination report
The first examination report submitted to controller by examiner generally
contains prior arts (existing documents before the date of filing) which are
similar to the claimed invention, and same is reported to patent applicant.
Step 8: respond to objections
Majority of patent applicants will receive some type of objections based on
examination report. The best thing to do it analyze the examination report along
with patent professional (patent agent) and creating a response to the objections
raised in the examination report.
This is a chance for an inventor to communicate his novelty or inventive step
over prior arts found in the examination report. The inventor and patent agent
create and send a response to the examination that tries to prove to controller
that his invention is indeed patentable and satisfies all patentability criterias.

Step 9: Grant of patent

The application would be placed in order for grant once it is found to be meeting
all patentability requirements. The grant of patent is notified in the patent journal
which is published time to time.
Stage 10: Renewal of Patent fees
Maintaining patent for its entire life time that is 20 years from filing date requires
renewal fees to be paid to patent office as mentioned in link here

No

Description

Natural
Person
(Individual
inventors)

Application for
grant of patent
Early
publication fee
Request for
examination of
patent
application
For every Extra
sheet over 30
sheets
For every Extra
claim over 10
claims

2
3

4
5

Comment

1600

Other than Natural

person (companies)
Small
Other than
Entity
small
entity
4000
8000

2500

6250

12500

Optional

4000

10000

20000

Mandatory

160/sheet

400/sheet

800/sheet

Mandatory

320/claim

800/claim

1600/claim

Mandator

References
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Debbarman, S. (2008). A Bibliometric Study of Indian
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Mandatory

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ProtectionofPatentsinIndia:IssuesandChallenges
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Nair, G. G. (2008). Impact of TRIPS on Indian
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Panchbuta. (2011, Feb 04). Panchbuta-Renewable
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Prasad, R., Bagde, U. S., & Varma, A. (2012). An
overview of intellectual property rights in relation
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Ramanna, A. (2002). Policy Implications of Indias Patent
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Ramesh, M. 2012. Dont support solar manufacturers now.
The Hindu Business Line.
Singsit, C. (2007). Agricultural Biotechnology- The impact
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Retrieved Feb 17, 2013, from e-pao.net: http://epao.
net/epSubPageExtractor.asp?src=education.
Jobs_Career.Agriculture_Biotechnology_II
TAC; MSF; RIS. (2012). Why South Africa should
Examine Pharmaceutical Patents, from http://ris.
org.in/images/RIS_images/pdf/TAC%20MSF%20
and%20RIS%20PB.pdf
The Economic Times. (2013). US exports may drive top
Indian pharma cos to grow 20% in 2013, from http://
www.business-standard.com/article/companies/
us-exports-may-drive-top-indian-pharma-cos-togrow20-in-2013-113020300080_1.html
Tomlinson, C. (2012, Oct 29). Patent law reform will benefit
both people with cancer and HIV. Retrieved Jan 13,
2013, from http://www.quackdown.info: http://
www.quackdown.info/article/cancer-patents/
WIPO. (2011). World Intellectual Property Indicators
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