What Should You Get Right Before Patent Filing in India?

Filing an application takes only a few hours, but the choices you make before it stay with your patent for its full 20-year term.

By Dr. Shivangi Johari, Registered Patent Agent

Is your invention about to go public?

We often get a call from a drone maker who is showing a prototype at a trade fair next week. Sometimes it’s a battery team that is about to send sample packs to a customer for trials. In both cases, the product is ready to be seen, but nothing has been filed yet.

This timing matters more than most founders realise. Indian patent law only protects inventions that are new, which means nobody should have seen or used them anywhere before you file. That includes your own brochure, demo video or product listing, so showing the product first can be used against your own application.

So the real question is not how quickly you can file, but what you need to settle before you do.

Who is guiding you through this?

I’m Dr. Shivangi Johari, the co-founder of Sitabience IP. I’m a Registered Patent Agent and a DPIIT IP Mitra Facilitator. Over the last 15+ years, I’ve drafted and prosecuted patents before the Indian patent office. My research background helps a great deal when an invention is built mostly in deep research language.

What happens once you hand it to us?

1. You share what you’ve built, in whatever form you have it, whether that’s drawings, code or test notes. Our review turnaround is typically 7 working days.
2. We search the prior art, which means anything already made public, and tell you plainly what can be claimed.
3. We draft the specification and claims, and you review the full draft before anything is filed.
4. We file the application and keep track of every legal deadline from that day on.

It helps to keep two clocks separate in your mind. Our working timelines are promises we make to you as your firm. Legal timelines come from the Patents Act and Rules, and nobody can stretch them at will. You’ll find the legal ones in the table further down this page.

What does patent filing in India actually involve?

At its simplest, you fill in an application form and attach a written description of your invention. The application form is called Form 1, and the description, known as the specification, goes on Form 2. You can file online through the IP India portal or in person at the Delhi, Mumbai, Kolkata or Chennai office. Paper filing costs 10% more in official fees.

A few supporting forms go along with it, and this is where most people slip up. Form 3 tells the Patent Office whether you’ve applied for the same invention in any other country. You must file it with your application or within six months. Form 5 names the people who actually came up with the invention, and Form 26 gives your patent agent permission to act for you.

If you’re a DPIIT-recognised startup or a qualifying MSME, you also file Form 28. It’s the form that proves your status so you can pay the lower fees, and it has to go with every document that carries a fee.

Should you file a provisional or a complete specification?

A provisional specification is an early, simpler description of your invention. It suits a product that works but is still changing. A complete specification is the full, final description, with claims, which are the sentences that set the legal boundary of what you own.

Filing a provisional gives you a priority date. Think of it as your place in the queue, because anyone who files the same idea after that date comes behind you. You then have 12 months to file the complete version, and if you miss that deadline, the application lapses as if you never filed.

The complete version must also explain the best way you know of making or using the invention. You can’t hold back your best method and still expect a strong patent. The Patent Office Manual adds that a provisional should include everything you know at the time, and in our experience, a thin provisional ends up protecting very little.

What happens after the application is filed?

Filing an application doesn’t mean anyone will look at it. In India, the Patent Office only examines your invention after you send a separate request, using Form 18. You must send it within 31 months of your first filing date, or the application is treated as withdrawn.

This deadline used to be 48 months, but the rules changed on 15 March 2024. Applications filed before that date still get 48 months, while newer ones get 31.

About 18 months after filing, your application is published in the Patent Office journal so the public can see it. You can ask for earlier publication by filing Form 9. Later, the examiner sends a First Examination Report, usually called the FER, which lists every objection to your application. You get six months to reply, and you can ask for up to three more months by filing Form 4, the form for extra time.

Can you get your application examined faster?

Yes, you can ask for fast-track examination, which the Patent Office calls expedited examination. You request it on Form 18A instead of Form 18, and it moves your application ahead of the normal queue. Only certain types of applicants can use it.

Startups and small entities, which include most MSMEs, are on that list. So are women filing in their own name, government departments, and institutions largely funded by the government.

For a manufacturing MSME, this is often the quickest way to get a decision. You’ll need your MSME certificate as proof, filed with Form 28. And if your business later grows past the MSME limit, the Patent Office can’t cancel your fast-track request for that reason alone.

Can startups and MSMEs pay lower fees?

Yes. Individual inventors, startups and small businesses pay a much lower fee scale than large companies do. The Patent Office publishes the full fee list, so you can see exactly what each step costs.

To count as a startup, your company needs DPIIT recognition under the Startup India programme. To count as a small entity, your business must fall within the MSME Act limits for a medium enterprise. Most manufacturing MSMEs meet this, and Form 28 is how you prove it.

If you later sell or transfer the application to a large company, the new owner pays the difference in fees. However, if your own business simply grows beyond the MSME limit after filing, nobody has to pay extra.

Do you need permission before filing outside India?

If you live in India, you usually need the Patent Office’s permission before filing a patent in another country. The law does this so that sensitive technology, especially anything with defence value, doesn’t leave the country unchecked. You ask for this permission on Form 25.

There is one simple way around it. If you filed in India first and waited at least six weeks, you can file abroad without permission, provided the Patent Office hasn’t ordered your invention kept secret. When you do need permission, the Patent Office normally decides within 21 days.

Skipping this step is one of the costliest mistakes an Indian inventor can make. Your Indian application can be treated as abandoned, and even a granted patent can be cancelled. The law also allows a fine, up to two years in prison, or both.

Can you patent software or an AI model in India?

You can, as long as your invention does more than the code itself. Indian law says you can’t patent a computer program on its own, a pure algorithm, or a way of doing business.

What the Patent Office looks for is a “technical effect”, meaning a real, measurable improvement in how a machine or system works. The Patent Office’s 2025 guidelines for software inventions say this clearly. The Delhi High Court also confirmed it in a 2019 case, Ferid Allani v. Union of India. For an AI product, that could mean showing how your model makes a device respond faster or control a machine more precisely.

A better-looking screen or app layout, on its own, is unlikely to qualify. Business methods are harder still, and in OpenTV v. Controller (2023), the Delhi High Court said they can’t be patented at all.

What’s special about a drone invention or a battery invention?

Hardware inventions come with their own traps. Indian law won’t protect a product that simply puts known parts together, where each part keeps doing its usual job. A drone that just combines an off-the-shelf camera, frame and flight controller could be refused for this reason.

What does get protected is a combination where the parts work together to produce something new or better. India’s Supreme Court made this clear in a 1978 case, Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries. So your application needs to explain exactly how the parts depend on each other.

Battery chemistry faces a similar test. A mix of known materials that only adds up what each one already does isn’t treated as an invention. The Patent Office wants to see the mix perform better than its parts would on their own, so keep the test data that proves it.

Drone makers should watch one more thing. If an invention looks useful for defence, the Patent Office can order it kept secret. In that case, the government must also agree before you can file abroad.

Which deadlines can’t you afford to miss?

What do we see in practice?

In our experience, most of the damage happens before anything is filed. A trade fair demo, a distributor presentation or an online product listing goes public first, and the invention can no longer be treated as new.

Rushed provisional specifications are the next common problem. They secure a date, but a year later they often fail to support the claims the business actually needs.

With software invention and AI invention filings, drafts often describe the features a user sees on screen. Examiners, however, want to see the technical effect underneath, and the claims should be built around that.

Finally, the foreign filing permission is the step Indian R&D teams forget most often. It usually happens when an engineer files a US provisional application first, straight from India, without realising permission was needed.

Frequently asked questions