What is patentable in India

Under Section 2(1)(j) of the Patents Act, 1970, an invention must satisfy: (i) novelty (not in prior art anywhere in the world), (ii) inventive step (not obvious to person skilled in the art), and (iii) industrial applicability. Section 3 excludes from patentability: business methods, computer programs per se, mathematical methods, plants and animals (other than micro-organisms), methods of treatment, and inventions contrary to public morality.

Filing and prosecution timeline

(i) Patentability search; (ii) provisional specification (12 months priority); (iii) complete specification with claims; (iv) request for examination (RFE) within 31/48 months of priority; (v) First Examination Report (FER) within 6–18 months of RFE; (vi) reply within 6 months; (vii) pre-grant opposition under Section 25(1) — can be filed by anyone; (viii) grant of patent; (ix) post-grant opposition under Section 25(2) within 12 months by any interested person; (x) renewal annually from 3rd year.

Patent term and working obligations

Patent term is 20 years from filing of complete specification. Annual renewal fees rise with each year. Patent owner must file Form 27 stating commercial working in India under Section 146 of the Patents Act — failure to work can attract compulsory licensing under Section 84 after 3 years from grant.

Patent infringement actions

Infringement suits under Section 104 lie before the District Court (originally) or the Commercial Court / High Court (where exceeding the commercial threshold). Reliefs: permanent injunction, damages, account of profits, delivery up and destruction. Defences: non-infringement, invalidity (counter-claim under Section 64), Section 107 — bona fide use before filing, government use under Sections 100–101, research/teaching use under Section 47.

Patent strategy for Indian SMEs

For most Indian SMEs and startups, the strategy is: (i) file in India first to claim priority cheaply; (ii) within 12 months file PCT international application for global priority; (iii) enter national phase in target jurisdictions (US, EU, China) before 30/31 months; (iv) supplement with design and trademark protection for products. Total cost in India: ₹50,000–₹2,00,000 per patent for an SME applicant. Startup applicants get 80% rebate.