A Step-by-Step Guide to the Patent Grant Process in India

Getting a patent in India is not a single-step event – it is a structured legal journey involving multiple procedural stages, each governed by the Patents Act, 1970 and the Patents Rules, 2003. From the moment an inventor decides to protect their creation, to the day a patent certificate is finally issued, every stage demands careful attention and timely compliance. Missing a deadline or skipping a procedural requirement can result in the application being deemed abandoned – with no second chance. This guide walks you through each stage of the patent grant process in India so you understand not just the steps, but what is at stake at each one.

Stage 1: Conducting a prior art search 🔗

Before filing anything, the first practical step is conducting a prior art search. This means searching existing patents, publications, and publicly available knowledge to determine whether the invention is truly new. Under the Patents Act, an invention must meet three core criteria to qualify for a patent: novelty (it must be new), inventive step (it must not be obvious to a person skilled in the relevant field), and industrial applicability (it must be capable of being used in an industry). If a similar invention already exists in the public domain, the application will be rejected at the examination stage. Conducting a prior art search beforehand helps the applicant refine claims and avoid wasting time and resources filing a non-patentable invention.

Stage 2: Filing the patent application 🔗

Once patentability is established, the inventor files an application before the Indian Patent Office (IPO), which operates under the Office of the Controller General of Patents, Designs, and Trade Marks. The application is filed using the prescribed forms along with payment of the applicable fee.

Provisional vs. complete specification 🔗

A key decision at this stage is whether to file a provisional application or a complete application. A provisional application is useful when the invention is still under development – it secures an early filing date without requiring full technical details. However, the applicant must follow up with a complete specification within 12 months from the date of the provisional filing. Under Section 9 of the Patents Act, if the complete specification is not filed within this period, the provisional application is deemed abandoned.

The documents required for filing include Form 1 (application for grant of patent), Form 2 (provisional or complete specification), Form 3 (statement and undertaking under Section 8, required if corresponding foreign applications exist), and Form 5 (declaration as to inventorship), among others. These forms are available on the official IPO portal. Once the application is received and found to be in order, the IPO assigns a date of filing and an application number – both of which become critical reference points throughout the process.

Types of patent applications 🔗

Apart from ordinary applications, inventors can also file as a convention application (claiming priority from a previously filed application in a Paris Convention country, within 12 months of that filing), a PCT (Patent Cooperation Treaty) application (for seeking international protection), a divisional application (when a single application covers multiple inventions), or a patent of addition (for improvements to an already patented invention). Each type follows specific procedural requirements under the Patents Act.

Stage 3: Publication of the application 🔗

After filing, the application does not immediately become public. Under Section 11A of the Patents Act, every application is published 18 months from the date of filing (or date of priority, whichever is earlier). This is automatic – the applicant does not need to take any separate action for ordinary publication.

However, if an applicant wants the application to be published earlier – for instance, to begin asserting provisional protection rights sooner – they can file Form 9 to request early publication. In such cases, the IPO publishes the application within one month of the request. Publication is significant because it makes the invention publicly visible. From the date of publication, the applicant enjoys certain provisional rights similar to a granted patentee, including the right to claim reasonable royalty if the patent is eventually granted – though enforcement of these rights is possible only after the actual grant.

Stage 4: Request for examination 🔗

India follows a deferred examination system. This means the IPO does not automatically examine an application after it is filed or published. The applicant must separately file a Request for Examination using Form 18 (or Form 18A for expedited examination) within 48 months from the date of filing or date of priority, whichever is earlier. If this request is not filed within the deadline, the application is irrevocably abandoned – there is no provision for restoration in such cases.

For expedited examination, certain categories of applicants qualify, including startups, small entities, female inventors, and applicants whose invention is related to specific technology areas. Once the request is filed, the Controller forwards the application to an examiner under Section 12 of the Act.

First Examination Report (FER) 🔗

The examiner conducts a thorough search of prior art and evaluates whether the invention meets all patentability criteria – novelty, inventive step, and industrial applicability – as well as whether it falls within permissible subject matter and whether the specification sufficiently discloses the invention. The findings are communicated to the applicant through a First Examination Report (FER), which typically contains objections or requirements that must be addressed before the patent can proceed to grant.

The applicant must respond to the FER and comply with all objections raised within 12 months from the date the FER is issued. If the applicant fails to respond within this period, the application is treated as deemed abandoned. If the applicant’s response does not fully satisfy the Controller, the Controller may offer the applicant a hearing. Following the hearing, the applicant must submit written submissions and any proposed amendments within 15 days (extendable to one month on request).

Stage 5: Pre-grant opposition 🔗

Between the date of publication and the date of grant, the application enters a window during which third parties can challenge it. Under Section 25(1) of the Patents Act, any person – even one without a direct commercial stake – can file a pre-grant opposition against the application in writing. The grounds for opposition are listed in clauses (a) to (k) of Section 25(1) and include lack of novelty, absence of inventive step, non-patentable subject matter, and insufficient disclosure of the invention.

The opponent files a representation in Form 7A under Rule 55 of the Patents Rules, 2003, along with a statement of the case and any supporting evidence, with a copy sent to the applicant. Upon receiving a pre-grant opposition, the Controller considers the submissions, may conduct a hearing, and then informs the applicant if the Controller is contemplating refusal or amendment of the application. The applicant is then entitled to respond. The Controller decides on the merits whether to proceed with the grant, order amendments, or refuse the application. Notably, the patent office manual clarifies that no patent is granted before the expiry of six months from the date of publication, which effectively provides a guaranteed window for filing pre-grant oppositions.

Stage 6: Grant of patent 🔗

Once all procedural requirements have been met, all objections from the FER have been resolved, and no pre-grant opposition is pending (or any such opposition has been decided in favour of the applicant), the Controller proceeds to grant the patent. Under Section 43 of the Patents Act, when the Controller is satisfied that the application meets all statutory requirements, the patent is granted and entered in the Register of Patents. The grant is then published in the Patent Journal, making it accessible to the public. A patent certificate is typically issued within about a week of the grant order.

From the date of grant, the patentee holds exclusive rights under Section 48 of the Act – the right to prevent others from making, using, selling, offering for sale, or importing the patented product (or using the patented process) without authorisation. These rights are territorial, applying within India, and are valid for a period of 20 years from the date of filing of the application.

Stage 7: Post-grant opposition and renewal 🔗

The grant of a patent does not mean the patent is entirely immune from challenge. Under Section 25(2) of the Patents Act, any person interested – meaning a person with a legitimate commercial or research stake – can file a post-grant opposition within one year from the date of publication of the grant. This is a more formal and adversarial proceeding involving an Opposition Board of three examiners, evidence rounds, and a hearing before the Controller. The Controller can decide to maintain the patent, amend it, or revoke it entirely based on the findings.

To keep the patent in force for its full 20-year term, the patentee must pay annual renewal fees from the 3rd year onwards, as prescribed in Schedule 1 of the Patents Rules. Failure to pay renewal fees causes the patent to lapse, though restoration may be possible in certain circumstances. Additionally, a patent can be revoked through court proceedings under Section 64 of the Act, or a compulsory licence may be issued by the Controller if the patentee is not adequately working the invention in India or if the invention is not accessible to the public at a reasonable price.

Key deadlines at a glance 🔗

Understanding the stages is only half the battle – keeping track of the associated deadlines is equally critical. The complete specification must be filed within 12 months of a provisional application. The request for examination must be filed within 48 months of the filing date. The response to the FER must be submitted within 12 months of the FER. Post-grant opposition must be filed within one year of the grant’s publication. Renewal fees are payable from the 3rd year onward. Each of these timelines is non-negotiable under the Patents Act, and missing any of them can result in the loss of patent rights with no recourse.

What do you think? Given that India follows a deferred examination system where applicants must separately request examination within 48 months, do you think this system adequately balances the interests of inventors with the need for timely patent processing? And considering that pre-grant opposition can be filed by any person – not just those with a direct stake – does this open framework strengthen or complicate the patent grant process in India?

References

1. https://www.indiacode.nic.in/handle/123456789/1392
2. https://www.lexpraxis.org/the-patent-process-in-india-a-comprehensive-guide/
3. https://www.globalpatentfiling.com/blog/Patent-Filing-in-India-A-Guide
4. https://patenevo.in/patent-protection-in-india/
5. https://www.lexology.com/library/detail.aspx?g=ad860335-7a01-42ea-9419-bf400247150a
6. https://www.royzz.com/post/navigating-pre-grant-patent-oppositions-in-india-understanding-the-legal-landscape-and-recourse-for
7. https://patentattorneyworldwide.com/in/grant-of-patent-2/
8. https://www.bananaip.com/intellepedia/patent-opposition-system-in-india-pre-grant-post-grant-oppositions/