India received 1,10,375 patent applications in 2024–25, a rise of nearly 20% in a single year. The country is now the sixth-largest filer of patent applications in the world.
Yet the patent application procedure in India defeats a surprising number of applicants. Most of the damage is done before an examiner ever opens the file: a disclosure made too early, a wrong application type, a missed declaration.
At Legismith LLP, we see the same avoidable errors repeatedly. Below is what you need to decide, and in what order, before filing.
The Patent Application Procedure in India at a Glance
This article covers the application stage. Everything after filing is a separate route, which our guide to the patent granting procedure in India follows in detail.
Step | Section or Rule | Deadline |
Confirm who is entitled to apply | Section 6 | Before filing |
Check the invention is not excluded | Sections 3 and 4 | Before filing |
Claim a grace period for an earlier disclosure | Section 31, Rule 29A | 12 months from the disclosure |
Obtain a foreign filing licence, if needed | Section 39 | Before applying abroad |
File the application | Section 7 | — |
Complete specification after a provisional | Section 9(1) | 12 months, not extendable |
Furnish proof of right | Section 7(2) | 6 months from filing |
Request examination | Rule 24B(1)(i) | 31 months |
Who Can Apply for a Patent in India?
Section 6 of the Patents Act, 1970 limits this to three categories. You may apply as the true and first inventor, as the assignee of that inventor, or as the legal representative of a deceased person who was entitled to apply.
If you are applying as an assignee, Section 7(2) requires proof of that right. This usually means an assignment deed, and it must reach the Patent Office within six months of filing.
This trips up companies most often. Where employees invent, the chain of title has to be documented properly. A vague contract clause may not be enough.
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What Cannot Be Patented in India?
Your invention must be new, must involve an inventive step, and must be capable of industrial application. It must also avoid the exclusions in Section 3.
- Section 3(c) — a mere scientific principle, an abstract theory, or a substance found in nature.
- Section 3(d) — a new form of a known substance with no enhancement of known efficacy.
- Section 3(h) — methods of agriculture or horticulture.
- Section 3(i) — methods of medical or veterinary treatment.
- Section 3(k) — a mathematical or business method, an algorithm, or a computer programme per se.
Section 4 places separate restrictions on inventions relating to atomic energy. You can read the full list of exclusions in the Patents Act published by IP India.
Can software be patented in India?
Section 3(k) excludes a computer programme on its own. An invention that produces a demonstrable technical effect beyond the programme itself may still qualify.
This matters more each year, as computer and electronics inventions now lead every technology field in Indian filings. Our note on AI and IP rights in India looks at how these objections arise.
Three Things to Settle Before You Apply
1. Search the prior art first
Novelty is destroyed by anything already published anywhere in the world. Start with the free Indian patent search system maintained by IP India, then widen it using the PATENTSCOPE database maintained by WIPO.
2. Check whether you have already disclosed the invention
A public disclosure before filing can sink the application. Section 31 offers a narrow rescue.
Display at an exhibition notified by the Central Government, publication in that exhibition’s catalogue, or a paper read before a learned society will not count against you, provided you apply within twelve months. Since 15/03/2024, you claim this on Form 31.
3. Decide whether you will also apply abroad
This is the step almost nobody mentions, and the consequences are the most severe in the whole procedure.
Please note: under Section 39, a person resident in India may not apply for a patent outside India unless they first file in India and wait at least six weeks, or obtain written permission on Form 25. Contravention means the Indian application is deemed abandoned under Section 40, any granted patent becomes open to revocation under Section 64(1)(n), and Section 118 provides for imprisonment of up to two years, a fine, or both.
Residence, not nationality, triggers this. If you are based in India and considering a United States filing first, settle it before anything else.
Which Type of Patent Application Should You File?
Choosing the wrong route can cost you a priority date you cannot recover.
Application type | When you use it | Deadline |
Ordinary | India is your first filing | — |
Convention | You filed in a convention country first | 12 months from that filing |
PCT national phase | You filed an international application | 31 months from the priority date |
Divisional | Your application covers more than one invention | Before the parent is granted |
Patent of addition | You have improved an invention already filed | On or after the main application |
Foreign applicants usually arrive by the international route. Our guide to national phase patent filing in India sets out that 31-month entry, and our patent practice page covers each route.
Provisional or Complete Specification?
A provisional specification secures your priority date early, while the invention is still developing. It does not need claims.
It also starts a clock. Section 9(1) gives you twelve months to file the complete specification, and that period cannot be extended. Miss it and the application is abandoned.
The complete specification does the real work. Section 10(4) requires you to describe the invention and its operation fully, disclose the best method known to you, and end with claims defining the scope of protection. The abstract is capped at 150 words.
This also answers a common question. You cannot patent an idea, only an invention described well enough for a skilled person to work it.
Where Do You File Your Patent Application?
You do not choose your patent office. Rule 4 fixes it by your place of residence, domicile or business, or by where the invention originated. Foreign applicants are placed by their address for service in India.
Patent office | Territory covered |
Mumbai | Maharashtra, Gujarat, Madhya Pradesh, Goa, Chhattisgarh, Daman & Diu, Dadra & Nagar Haveli |
Chennai | Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, Telangana, Puducherry, Lakshadweep |
New Delhi | Haryana, Himachal Pradesh, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand, Delhi, Chandigarh, Jammu & Kashmir, Ladakh |
Kolkata | The remaining territory of India |
An application cannot be moved to another office later. Examination, however, is allocated centrally, so your file may be examined elsewhere.
Which Forms and Documents Do You Need?
Form | Purpose | When |
Form 1 | Application for grant of patent | At filing |
Form 2 | Provisional or complete specification | At filing |
Form 3 | Statement on applications filed abroad | At filing, or within 6 months |
Form 5 | Declaration as to inventorship | With the complete specification |
Form 26 | Power of attorney | If you appoint an agent |
Form 28 | Claim to small entity or start-up status | At filing |
Form 9 | Request for early publication | Any time before publication |
Form 18 | Request for examination | Within 31 months |
Form 3 is more demanding than it looks, and the obligation continues after filing. Our note on the Rule 12 and Form 3 amendments explains the current position.
Is early publication time-barred?
No, and this is widely misreported. Rule 24A lets you request early publication at any time before the ordinary publication at 18 months. The Patent Office normally publishes within a month of your request.
What Does It Cost to File a Patent in India?
Official fees turn on who you are, not on how complex your invention is.
Item | Individual, start-up or small entity | Large entity |
Filing (up to 30 pages, 10 claims) | ₹1,600 | ₹8,000 |
Each page beyond 30 | ₹160 | ₹800 |
Each claim beyond 10 | ₹320 | ₹1,600 |
Request for examination | ₹4,000 | ₹20,000 |
Early publication | ₹2,500 | ₹12,500 |
Filing on paper rather than electronically adds a surcharge of 10%. Recognition as a start-up through the Startup India portal run by DPIIT, or as a small entity through Udyam registration, moves you into the lower column and also opens the door to expedited examination.
Confirm the current figures against the official schedule on the IP India website before you file.
Patent Fee Calculator
Calculate official Indian patent fees instantly — filing, examination, renewals, oppositions, PCT and more. DPIIT startup rates included. Based on the First Schedule of the Patents Rules.
What Happens After You File?
Your application is published automatically eighteen months after filing or priority, under Section 11A. Publication gives you no rights.
Nothing else happens until you ask for it. You must file Form 18 within 31 months of the earliest priority or filing date, under Rule 24B(1)(i).
That window used to be 48 months. It was cut to 31 months for applications filed on or after 15/03/2024, and a great deal of published guidance still quotes the old figure. Miss the deadline and the application is treated as withdrawn under Section 11B(4), with no route back.
Common Mistakes at the Application Stage
- Disclosing the invention publicly before filing anything.
- Expecting to patent an idea rather than a described invention.
- Filing abroad first while resident in India, without permission under Section 39.
- Letting the twelve-month provisional deadline pass.
- Forgetting proof of right where the applicant is not the inventor.
- Claiming the lower fee without filing Form 28.
- Working to a 48-month examination deadline that no longer applies.
Frequently Asked Questions
Can I patent an idea in India?
No. Section 10(4) requires the specification to describe the invention fully enough for a skilled person to perform it. An idea without a technical solution cannot support that.
Do I need a patent agent to file?
You may file in your own name without one. Only a registered patent agent or an advocate may act before the Patent Office on behalf of another person.
I presented my invention at a conference. Is it too late?
Possibly not. Section 31 covers certain disclosures if you apply within twelve months and claim the grace period on Form 31.
Is the examination deadline 31 or 48 months?
It is 31 months for applications filed on or after 15/03/2024. Earlier applications keep the 48-month window.
How long is a patent valid in India?
Twenty years from the date of filing, provided renewal fees are paid from the third year.
Final Thoughts on the Patent Application Procedure
The patent application procedure in India rewards preparation over speed. Entitlement, exclusions, disclosure history and the choice of route all have to be settled before Form 1 is signed. None of them can be fixed later.
Filing also does not clear you to sell. A patent stops others from working your invention; whether your own product infringes someone else’s rights is a separate question, and our guide to freedom to operate analysis explains why the two are confused.
At Legismith LLP we draft and file applications across every route above. You are welcome to speak with our team about where your invention sits.
So, where are you in this process today — still testing whether the invention can be patented, or ready to choose between a provisional and a complete specification?
Disclaimer
The content provided in this article is for general informational purposes only and does not constitute legal advice. Please consult with a qualified IP attorney for your specific needs.
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