A patent is granted for an invention after the jurisdictional patent office has examined the application and concluded that the applicant has successfully satisfied all legal and procedural requirements under the applicable patent law. In other words, a patent is granted once the invention meets all substantive patentability criteria.
The process of complying with all formal requirements and resolving objections that may be raised varies for each jurisdiction. In general, the process takes 2-4 years via the normal route; however, faster or expedited paths exist, culminating the grant of an official certificate and exclusive rights for the invention.
The inventor or applicant first files with the relevant patent office the patent application, which contains a description of the invention, claims defining the scope of protection, and drawings (if any) in the prescribed forms, along with fees.
The application is then published after a fixed period, which is most commonly eighteen months from the priority of filing date. Such application publication does not confer patent rights; it only makes the invention publicly accessible.
Thereafter, the inventor files, along with the applicable fees, the Request for Examination (RFE) within the prescribed time, which is usually within 48 months of patent application filing. It must be borne in mind that in several jurisdictions the substantive examination of patent applications is not done automatically.
Only after the filing of the RFE does the patent office assess patentability. This entails an examiner examining the patent application and assessing the invention against patentability requirements. The core patentability criteria include novelty, inventive step (non-obviousness), industrial applicability (utility), disclosure sufficiency, clarity of claims and patentable subject matter.
The examiner may then raise objections through “evaluation reports”, and the applicant must respond by amendment or argument within the statutory period. In some jurisdictions, such as, India, third parties too may oppose the grant. Hearings may also be held to resolve outstanding objections.
The office allows the patent application and formally issues the grant order or certificate for the patent once all objections to such grant are satisfactorily met. The invention details are published in the patent journal.
From the date of such publication in the journal, the applicant becomes the patentee; and, exclusive rights over the invention come into force. The patent term commences thereafter and sustains, generally 20 years from the filing date, subject to the periodic payment of renewal fees.
It is clear from the foregoing that a patent is granted for an invention not upon the filing or publication of the application, but by the formal decision of allowance after examination by the competent authority.
Normal processing of applications takes several years; but expedited routes for startups, etc., do exist that can significantly shorten the time. Complex inventions or high application volumes too slow things down in many jurisdictions. It is obvious too that timely and effective applicant responses to office actions speed up the process.
The processing timelines for patent grant do vary. In some geographies (USA, for instance), the application processing begins automatically. In other jurisdictions— India and Europe—the application is deemed withdrawn if the Request for Examination (RFE) is not filed.
In the United States and Europe, there is no concept of pre-grant opposition; challenges occur via post-grant proceedings. Interestingly the European Patent Office (EPO)grants patents centrally; however, enforcement is national within the European Union.
In the US, patents are granted upon the issuance of a Notice of Allowance and the payment of appropriate fees. Rights are enforceable on such grant; damages though may date back to publication of the patent application.
At Blaze Ventures, we have elaborate processes and qualified professionals for strategically advising inventors and enterprises on the filing of patent applications in multiple jurisdictions and pre-grant patent prosecution.
