Many inventors and startups believe that once their patent application gets published, they instantly own exclusive rights over their invention. It sounds reassuring, but that’s not how the patent system works. Patent law has clear stages, and mixing them up can leave you with no real protection, wasted time, and a false sense of security.
Here’s the thing—filing, publication, and grant are three very different milestones. Publication simply makes your idea visible to the world, while a grant is the real certificate of ownership. Unless you understand this difference, you could be celebrating too early or missing the critical steps needed to turn your idea into a legally enforceable right.
Understanding IP is not just for lawyers and corporates; it is for anyone who dares to create.
So, grab your curiosity. Take a seat. The door to The Patent Room is Open. Come explore with us.
1. A Common Patent Misconception
Imagine this:
At a busy coffee shop in Mumbai, Ramesh proudly tells his friend,
“My patent got published last week. I’m officially a patent holder now!”.
His friend’s eyes widen, and he congratulates Ramesh with a handshake and a pat on the back. Ramesh walks out of the café feeling like an inventor-king.
Except… there’s one small problem. What Ramesh just said is a misconception that thousands of inventors still believe:
That patent publication = patent grant.
The truth? They’re not even close. And understanding the difference could save you from disappointment, wasted effort, and missed opportunities.
2. The Reality Check
In the world of patents, published and granted are two very different stages in the life cycle of a patent application.
Think of it in terms of a school exam:
- Publication is like your name appearing on the exam schedule; it simply means your application is officially in the public domain for everyone to see.
- Grant is when you’ve passed the exam after meeting all the criteria, and you now have the legal certificate to prove it.
3. What is Patent Publication?
In India, Section 11A of the Indian Patent Act governs the publication of patent applications. By default, every patent application is published 18 months from its filing date or priority date (whichever is earlier). However, you can request early publication if you want your application to appear sooner in the official records.
When your application is published:
- It appears in the Indian Patent Office Journal, which is publicly accessible.
- Anyone, including competitors, can read your invention details.
- The world now knows you’ve claimed this idea.
- But, and this is key, you do not yet have enforceable rights.
At this stage, you cannot stop others from making, using, or selling your invention. You also cannot sue for infringement.
Why publish at all?
- It’s a legal requirement.
- It serves as a public disclosure, a “flag” in the ground that says, “I invented this.”
- It’s the first formal milestone towards a grant.
4. What is a Patent Grant?
A patent grant is not automatic after publication. It happens only after your application has been examined and approved by the Indian Patent Office.
Here’s the typical process:
- Request for Examination (RFE) – As per Section 11B, you (or any other person interested) must file this request for examination within 31 months from the earliest filing date. This applies to applications filed on or after March 15, 2024. For applications filed before that date, the deadline remains 48 months. Without it, your application will never be examined.
- Examination – The Patent Office checks your application against prior art, legal requirements, and patentability criteria (Novelty, Inventive step, and Industrial applicability).
- Reply to FER and Hearing Notice – The examiner may raise objections. Your patent agent or attorney must respond, possibly amending claims or providing clarifications. If the objections are not fully resolved through FER written submissions, the Patent Office may issue a hearing notice. In such cases, your attorney will attend the hearing to present arguments, clarify technical or legal issues, and address any remaining concerns before the Learned Controller makes a decision.
- Acceptance – Once all objections are resolved, the Learned Controller grants the patent.
When your patent is granted:
- You receive an official patent certificate.
- You gain exclusive legal rights to prevent others from making, using, selling, or importing your invention in India.
- You can take legal action against infringers.
5. Why Understanding This Difference Matters
Many inventors assume that once their application is published, their rights are secure. That’s not the case.
Until a grant is issued:
- You can’t stop others from using your invention.
- Your application might still face objections or rejections.
- If you never file a Request for Examination, your application will lapse without ever being granted.
In fact, Section 11A (7) of the Patent Act does allow you to claim damages for infringement occurring after publication, but only if your patent is eventually granted. This means your rights during the “published but not yet granted” stage are still conditional.
6. A Real-World Analogy
- Filing your nomination = Filing your patent application.
- Your name appearing in the candidate list = Patent publication.
- Winning the election and getting the seat = Patent grant.
Just because your name is on the list doesn’t mean you’ve won.
7. The Legal Backbone
- Section 11A – Deals with the publication of applications.
- Section 11B – Deals with requests for examination.
- Sections 43 & 48 – Cover the grant of patents and the rights of patentees.
8. The Takeaway
Publication is an important step, but not the finish line.
The real power comes only after the patent is granted.
Because in the world of innovation, the difference between the two could mean the difference between owning a legal monopoly and having nothing more than a public disclosure.
So, next time someone says, “I have a patent,” don’t be shy to ask:
“Is it granted or just published?”