Procedure to obtain a patent — application, acceptance, grant; who may apply — Intellectual Property Rights I Notes

Procedure to obtain a patent — application, acceptance, grant; who may apply

When Mahesh, a university professor, invented something in his spare time using university equipment, the university claimed the patent. Who owns it? The answer lies in the first question every patent procedure asks: who is the true and first inventor?

Who may apply — s.6

An application may be made by (any of, alone or jointly):

the true and first inventor of the invention;
an assignee of the true and first inventor (e.g. an employer to whom the inventor has assigned rights); or
the legal representative of a deceased person who was entitled to apply.

The “true and first inventor” (s.2(1)(y)) is the person who actually devised the invention — not the first importer, and not someone who merely learned of it from another. This rule decides the ownership problems: a lab assistant who only knew of the invention is not the true and first inventor; a student who applies a principle taught by a teacher to make a new working invention is the true and first inventor of that invention.

The procedure — the step chain

Filing the application (s.7). File with the Patent Office, with either a provisional or complete specification (s.9). The priority date is fixed by the filing date.
Specification (ss.9, 10). A provisional secures the priority date; a complete specification (with full description and claims) must follow within 12 months.
Publication (s.11A). The application is published in the Official Journal, ordinarily after 18 months. Until then it is kept secret.
Request for examination (s.11B). Examination is not automatic — the applicant (or any interested person) must request it within the prescribed period, or the application is treated as withdrawn.
Examination and objections (ss.12–14). The examiner searches for novelty and inventive step and issues a First Examination Report (FER); the applicant answers objections.
Pre-grant opposition (s.25(1)). Any person may oppose before grant, on the grounds in s.25(1).
Grant (s.43). If requirements are met, the patent is granted, sealed and entered in the Register (s.67); the grant is published.
Post-grant opposition (s.25(2)) may be filed by an interested person within 12 months of publication of grant.
Term (s.53). 20 years from the filing date, subject to renewal fees.

“Acceptance” in the older scheme meant the stage at which the Controller found the application in order; in the current scheme this corresponds to the examiner’s report being met and the patent proceeding to grant.

Patents Act, 1970, s.6(1): “an application for a patent for an invention may be made by any of the following persons… (a) by any person claiming to be the true and first inventor of the invention; (b) by any person being the assignee of the person claiming to be the true and first inventor…; (c) by the legal representative of any deceased person who immediately before his death was entitled to make such an application.”

In Simple Terms: Only the real inventor (or someone he has assigned to, or his legal heir) can apply. Then the invention travels a fixed conveyor belt: file → specification → publish → request examination → examine → oppose → grant, and the patent lasts 20 years from filing.

🧩 WORKED EXAMPLE — the teacher-and-student problem

Facts. A physics teacher explains a principle in class. A student uses that principle to build a new working invention producing a new result, and claims a patent.

Rule. s.6 — only the true and first inventor may apply; the true and first inventor is the one who actually devised the invention.

Apply. The teacher merely stated a known principle; he did not devise the invention. The student applied the principle to create a new, working, result-producing device — so the student is the true and first inventor.

Decoy. The fact that the idea “came from” the teacher’s lecture does not make the teacher the inventor; teaching a principle is not inventing a device.

Conclusion. The student is entitled to apply and own the patent.

flowchart TD
    F["File application (s.7) + specification (s.9)"]:::root
    F --> PUB["Publication after 18 months (s.11A)"]:::leaf
    PUB --> REQ["Request examination (s.11B)"]:::leaf
    REQ --> EX["Examination & FER (ss.12-14)"]:::leaf
    EX --> OPP["Pre-grant opposition (s.25(1))"]:::leaf
    OPP --> GR["Grant & seal (s.43); enter Register (s.67)"]:::leaf
    GR --> POST["Post-grant opposition within 12 months (s.25(2))"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;

Case Laws

V.B. Mohammed Ibrahim v Alfred Schafranek (1960) — a mere financier or a person who only supplies money/materials is not the true and first inventor; the inventor is the one who devises.
Bishwanath Prasad Radhey Shyam v Hindustan Metal Industries (1979) — reiterated that the applicant must be the genuine inventor of a real inventive advance.

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