Patents Act 1970ProsecutionExaminationOppositionTRIPS
AMLEGALS / Intellectual Property / Patent Filing
Patents Act 1970

A patent converts innovation into an enforceable twenty-year monopoly — if the prosecution pathway is navigated correctly

Patent filing in India is governed by the Patents Act 1970 (as amended in 2005 to comply with TRIPS) and administered by the Indian Patent Office under the CGPDTM. The process moves through filing, publication, examination, opposition (pre-grant and post-grant) and grant.

Strategic context

From specification to grant — the prosecution pathway

A patent application in India may be filed with a provisional specification (establishing priority) followed by a complete specification within twelve months, or directly with a complete specification. The application is published after eighteen months (or earlier on request), and examination is conducted only upon a request for examination filed within thirty-one months from the priority date or filing date, whichever is earlier (Patents (Amendment) Rules 2024). The Controller examines the application for novelty, inventive step and industrial applicability under Sections 2(1)(j), 2(1)(ja) and 2(1)(ac). The first examination report must be responded to within six months (extendable by three months), and the application must be in order for grant within the prescribed period.

AMLEGALS advises on patent prosecution strategy, drafting of specifications, responding to examination reports, defending and prosecuting pre-grant and post-grant oppositions, and advising on enforcement, licensing and compulsory licensing under Sections 84 and 92. The practice covers utility patents across technology, pharma, biotech, chemical and mechanical inventions.

Workstreams

Advisory workstreams

01

Drafting and filing

Preparing provisional and complete specifications, claims drafting and filing with the Indian Patent Office.

02

Examination response

Responding to the first examination report and Controller objections on novelty, inventive step and patentability exclusions under Section 3.

03

Pre-grant opposition

Defending or prosecuting opposition under Section 25(1) before the Controller.

04

Post-grant opposition

Defending or prosecuting opposition under Section 25(2) before the Opposition Board.

05

Licensing and assignment

Drafting licence agreements, recording assignments and advising on compulsory licensing under Sections 84 and 92.

06

Infringement and revocation

Advising on infringement suits under Section 104 and defending revocation petitions under Section 64.

Answers

Frequently asked questions

01What inventions are not patentable in India?

Section 3 of the Patents Act 1970 excludes several categories: methods of agriculture or horticulture (Section 3(h)), processes for medicinal, surgical, curative, prophylactic or diagnostic treatment of humans or animals (Section 3(i)), plants and animals in whole or any part thereof other than micro-organisms (Section 3(j)), mathematical methods, business methods and computer programs per se (Section 3(k)), aesthetic creations, mental acts, and traditional knowledge (Sections 3(l)-(p)). Each exclusion has been interpreted through a body of Controller and High Court decisions.

02What is the difference between pre-grant and post-grant opposition?

Pre-grant opposition under Section 25(1) can be filed by any person after publication but before grant, and is decided by the Controller. Post-grant opposition under Section 25(2) can be filed by any person interested within one year of the date of publication of grant, and is decided by the Controller after considering the recommendation of the Opposition Board. The grounds for both are listed in Section 25 and overlap substantially.

03How long does patent prosecution take in India?

The average time from filing to grant, with timely examination request and no opposition, is approximately 3 to 5 years. Expedited examination is available for startups recognised under the DPIIT scheme, for applicants who have filed corresponding PCT applications designating India, and for female applicants, among other categories.

04What is compulsory licensing under the Patents Act?

Sections 84 and 92 of the Patents Act 1970 allow any person interested to apply for a compulsory licence after three years from the date of grant if the patented invention has not been worked in India, is not available to the public at a reasonably affordable price, or is not worked in the territory of India. The Controller of Patents grants the licence on terms including adequate remuneration to the patentee. India's first compulsory licence was granted in Natco Pharma v Bayer (2012) for the cancer drug sorafenib (Nexavar).

05Can software be patented in India?

Section 3(k) of the Patents Act 1970 excludes computer programs per se from patentability. However, inventions that involve a technical contribution beyond the mere computer program — a novel hardware interaction, a technical effect or a solution to a technical problem — may be patentable. The Indian Patent Office's Guidelines for Examination of Computer Related Inventions (2017, revised) apply.

06Does an initial discussion create a lawyer-client relationship?

No. No engagement is treated as accepted until conflicts, scope and terms are confirmed in writing.

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