How to patent an idea in India
How to patent an idea in India from idea to complete invention disclosure
Idea incubation phase
This is probably the most important chapter of the book for you (the inventor) because if you remember when we were going through the steps and procedure for patent at idea incubation phase in your involvement as an inventor is 100% compared to patent professional (not involved yet) and patent office (not involved yet).
This is guideline helps you in moving from point A to point B
Point A is when you get an innovative idea, and you are thinking to yourself that probably this idea could win patent.
Point B is where, you are ready with comprehensive invention disclosure with along with the important information you came across while doing preliminary research about novelty and having closest possible prior arts already identified and included with comprehensive understanding about possible Inventive step of invention. hence creating a very informed starting point and invention disclosure that your patent agent / attorney can start working on it right away. Let’s get started,
Get clarity on Idea
The way we get more and more clarity about our innovative ideas is when we start writing down things on paper or in a word processor document:
Start taking notes of details about the innovative idea, and get complete idea on a paper or a soft copy document, this is rough draft of your idea and by no means it need to be perfect or complete, just get started with this.
Action Items: Capture all details of idea
- What is my innovative idea is about?
- What problem it solve?
- How does it solve the problem?
- What are some advantages of my innovative idea?
- Technical details about idea and how it function
- Important elements of it
- Block diagram or flow chart or any other relevant diagrams to explain the idea in better way.
Our outcome here is to get down all of our thoughts you need not be perfect or complete initially as there may be plenty of fill in the blank elements that you still don't have clarity upon that's pretty natural and we will be filling those elements as and when we proceed.
“we call it as a brain dump !!!”
*brain-dump is a complete transfer of accessible knowledge about a particular subject from your brain to some other storage medium, such as paper or your computer's hard drive
In the next phase, try to come up with as many diagram or flowchart or whatever the convenient way of explaining your ideas and get more clarity on your innovative idea. again this would be only rough sketches, don't worry about the perfection here just get everything in front of you.
Now, with the idea complete captured, or in some cases the outcome of research and development is completely capture as per actions items above, we are going to perform a small research, we call it as preliminary search.
There are two aspects of doing this research:
- try to find if somebody has already developed such an idea, and
- second aspect is to get a brief idea and understanding about the level of awareness of the market (existing knowledge or state of the art) about your innovative idea.
Now, this is by no means going to replace the comprehensive patentability search performed by a patent agent or attorney. You may spend around 1 to 3 days to perform preliminary search.
Checklist for doing preliminary search
- How many results we are getting that are really close to our innovative idea or talking something similar to our idea?
- How many products or services are there already in the market that are similar to our invention
- What is the extent of knowledge is already known to public in field of our invention, is there any uniqueness in our innovative idea?
- How our invention is different or better than the prior art… or other products known to public
- Do our idea have novelty? or some part of our invention that is not known to public?
Another important thing is to create and maintain list of keywords that we use to define our innovative idea. You will start with very few keywords, like your version of preferred terms you use for elements,
For example: you would be calling a computer processor as CPU (central procession unit) for our invention, however others may call it a image processor or information processing unit or signal processing system etc…depending on preference of words and language they use, and these all words might be used by different people at different places like articles, blogs, videos, patents, IEEE papers, books to necessarily explain exactly same thing !!!
so to be as comprehensive as possible with our preliminary research we need to build a list of keywords that we used to describe main elements of our innovative idea and its synonyms and other variations that you came across while doing research and reviewing results.
Let’s say one of the element is a CCTV camera in our invention, then by finding synonyms for this elements and while doing research we came across different version of names for essentially same or similar device…
see the worksheet below, so updating the list of keywords and synonyms would be ongoing process and the list of keywords would keep getting mature and comprehensive as we progress.
Now, preliminary search becomes more and more accurate and shows more relevant results When we start using different combination of keywords from our list. If you able to search with fairly accurate keyword combinations related to your idea then chances are you will come across a lot of articles, blogs and sometimes there may be companies and products very similar to your invention will show up in the search results.
How to search
- when you have complete information about your invention in front of you; You can start performing search for finding closest possible prior arts
- start with basic keywords and then start adding different variations of keywords using the list of synonyms and different nomenclature that we have enlisted in previous section
- you can start with simple Google search, and slowly build the research on patent specific websites like Google patents, USPTO, European patent search, Indian patent search etc…
- so probability is you will come across some important prior arts for your innovative idea which are most readily searchable, and easily available on internet
Now, It is important Not to get discouraged here seeing a lot of stuff online that is similar to your innovative idea. Keep a good record of the results you feel are very closely related to our invention and create a folder to save these results. We call them closest possible prior arts. Find as many as possible and keep its record, we are going to review them at later stage and these are going to prove important in patent drafting / writing phase as well.
How to review results of preliminary search
If you remember the definition of a new invention from chapter 1,
Section 2(1)(l) "new invention" means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art;
Now, let me clear it again; we are not replacing a patentability search which is done by patent agent or attorney here. Our only objective is to find the newness of the innovative idea.
While reviewing results we are comparing our invention and elements of our invention with the results found (that is prior arts, existing knowledge) and ideally some aspects of our invention should be new / novel which is not mentioned in prior art. It is important to know that
“patents are not only given for ground breaking inventions, where as in reality patents are granted for incremental inventions too. That is incremental improvements in existing systems that are known to public.”
What we can understand from this (and what is really encouraging ) is even if our innovative idea has some aspect that may be very small (yet significant to qualify for inventive step. See definition in chapter 1) you we can win patent for that invention.
In other words, we might have 95% of elements of our invention which are known to public and in existing knowledge But even if we have 5% of our invention that is some small part of our invention which is novel, which is non-obvious to a person skilled in the art and which has industrial application then our invention would be patentable !!!
And this is a great news… isn’t it !!!
What we can learn from this is do not get discouraged seeing thousands of or even lacks of results in your search talking something similar to our invention, our invention still might have some inventive step in it which could win patent.
when we are reviewing results and closest possible prior arts, look for following things and take a note of it:
find the ways in which your invention is different or rather better in getting intended results or solving existing problem. maybe you have some of points in your inventions as below:
some aspect of it may be technically advanced or economically significant or both
Your way to solve the problem is more energy efficient
your compound, medicine may be having more efficacy
your software or application is doing some advance things to solve a problem than existing solutions
The improvement may seemingly small but it still can win patent if it is novel, non obvious (that is having inventive step) and is having industrial application.
It is important to understand not to get discouraged while seeing hundreds and thousands of similar patents or articles or blog post talking similar thing like your innovative idea because, there is every chance that you are innovative idea might have at least incremental invention that we could discover at detailed discussion and review with a patent agent /attorney. And a good patent application writing specifically pointing out novel and non-obvious aspects of the invention while writing claims would eventually will be rewarded with patent.
Now, you are not expected to do patentability analysis of invention on your own in fact this is done by experienced patent agents and attorneys after performing extensive research for 5 to 7 days, we are not expecting such judgment from you (the inventor).
Instead, we want to address an important problem here that inventor gets discouraged by seeing a lot of results, products, patent and articles in his area and abandons the follow-up or research and development effort although his innovative idea (invention) might be patentable !!!
So, do not get discouraged and take next step.
Having said that, there is other side to it as well. When you see that there are many results in the search that talk exactly same like your invention and in fact there are products and services about it being used by public and there is nothing new or improved in your invention when compared to existing knowledge, that is 100% knock out by many prior arts / existing knowledge…
Then probably yes, you may get discouraged and stop following up with that innovative idea. I would still say get opinion from patent professional before you conclude on this too.
At the end of this preliminary search what we have is :
- a detailed description of invention where every aspect of it is completely captured
- Diagrams, flowcharts and illustrations if applicable
- comprehensive list of keywords, synonyms and search terms
- all results of preliminary search reviewed
- list of closest possible prior arts
- differences and problems with prior arts that our invention is solving
- some aspect of our invention that are novel and non-obvious
having all this information in front of us, now we are in position to create most comprehensive invention disclosure also called working disclosure of the invention.
Below are list of questions to which we need to find answers to be able to create a complete invention disclosure
Your invention disclosure needs to answer these questions (if not all of them, as many as possible):
- How you have come up with this innovative idea?
- What is your invention about?
- What problem your invention is solving?
- What are the advantages of your invention?
- What are important elements or components of your invention?
- Draw a block diagram or device or flowchart or sketch that explains your invention in better way
- What products or services that are already in the market which are similar to your invention
- How your invention is different or improved or efficient than already existing knowledge
- What components are unique and non-obvious to a person skilled in the art
- What is the inventive step in your invention that is either technical advanced or economic significance or both
- Who are the main competitors working in the same field of my innovative idea and what are their products or services
- Does any publication, articles, news, blog, PDF, book, video or patents completely disclosure your invention
- What part of your invention is crucially important for commercialization
- How your invention is better than the prior arts and existing knowledge
- what are the limitations of existing patents or prior art and how your invention is providing solution to those problems
- can you explain my invention in to granular details such that the disclosure becomes enabling, that is a person skilled in the art should be able to practice their invention without doing additional research just by reading my disclosure of invention.
- include outcome of experiments or results in table formats, graphs or any charts related to your innovative idea ( if applicable)
- can you mention important elements to be included in claims
although these questions are too much and you probably don’t need to answer all of them however you could easily come up with answers to all of them in much better way now... because you have done preliminary search
The collection of information which answers questions above creates a comprehensive invention disclosure.
You will have a very important information collected in the folder which would include:
- Final version of invention disclosure
- downloaded and reviewed prior art documents
- your review notes about prior arts mentioning how our invention is different or improved
- Informed and detailed answers to invention disclosure form
- your personal notes and opinion about what you think is really novel as per your research and where are commercial important aspects of this invention
- And if possible guideline on where to focus when writing and drafting the patent application
Now, when you talk to your patent agent or attorney you know inside out what exactly that you are looking to protect and most important of all you will start with meaningful discussions with your patent attorney from the first call itself, simply because the kind of clarity that you have about your invention and the current state of the art related to the field of invention.
How this will save time and costs
Now having done such an important work on your innovative idea before even contacting to patent agent or attorney ( that is following all steps in Idea incubation phase), this will save a lot of efforts, time and ultimately costs when you are moving ahead with patent filing for invention. Particularly this helps in:
- eliminating a lot of rework / additional research
- to and fro communications and
- delays in communication from your end because you are not prepared with required information
And most important of all is your patent agent / attorney going to love working with you because you probably are one of the most informed client he has came across, and he need not educate you while working with you, most of patent agents/attorneys would be delighted by the efforts you took to understand the novel and non-obvious part of your invention and coming up with really good invention disclosure and may provide you with discounts in the professional fees up to certain extent.
Of course patent agent /attorneys will do their patentability search, they will come up with their own patentability search report and then share it with you and you would be reviewing it with them.
but what you have done for now (in this idea incubation phase) really going to help you in a great deal in getting very close to our main outcome that is “getting the maximum protection for your invention in shortest possible time and at lowest possible cost.”
Mistakes to avoid in idea incubation phase
mistake 1: Wasting your valuable time, efforts and money on Innovative ideas that are already known to public.
Taking innovative idea to patent attorney too early and directly without doing much of background check. in this case the problem would be wasting time efforts and money on innovative ideas which you yourself would have known prior to giving to patent attorney that the idea is not yet completely developed, or is not at all patentable because this innovative idea is known to public already and was easily discoverable upon doing little bit of research by inventor himself.
Mistake 2: Waiting too long to perfect innovative idea
Second mistake would be analysis paralysis that is waiting for too long to take your innovative ideas to patent agent or attorney. this is the mistake which is initiated by the belief that your inventions should have something groundbreaking new thing to be able to win patent.
Too early and too late both are dangerous when it comes to filing patent application for the invention.
If you are too early, you may be in a ideation stage and research and development still going on, so complete description of invention to get patent might not yet be available with you. hence you might not be protecting the invention with appropriately scope.
And if you are too late, chances are you would lose the priority or even invention since competitors may come up with same patent application before you file one.
Video on Idea incubation phase