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Patent Drafting and its Significance

Ms. Swechha Rana

20 Jun 2022

What is patent drafting?

Patent drafting is a part of how to patent an idea and is the process of writing the patent description and claims. Patent drafting is the core of every patent application. It is a techno-legal document based on which patent rights are decided.

Why do You Need to Know about Patent Drafting?

In theory, anyone can draft a patent application. But in practice, professionals including lawyers and technical professionals who are commonly referred to as “patent agents” or “patent engineers”, these people write patent applications and file them with government authorities because these applications can be technically and procedurally complex. Collaboration between a lawyer and the inventors, is an essential part of the patent drafting process. It is imperative that the attorneys understand the invention in detail, all of its claims of usefulness, as well as what distinguishes it from similar existing products or processes. Failure in this area increases the chances of the application being denied by the patent offices.

Where to file patent?

Patent application can be filled with national patent office, or you can file an international patent application with WIPO if permitted by your State’s national security provisions. Alternatively, application can be filled with the regional patent Office concerned, if permitted by the applicable national law).

What is patent? What are the legal requirements of Patentability?

A patent is an award of a limited monopoly from a government for an invention. A patent generally grants the patent owner the exclusive right to control who makes, uses, sells, offers for sale or imports any product or technology protected by the patent’s claims. In order to obtain a patent, the patent’s claims must typically describe an invention that is new, useful and non-obvious in view of the “prior art.” Prior art is a technical term that generally refers to all the public knowledge and inventions that existed before the patent application’s filing.

Subject matter of patent refers to what can be patented? So patent law protects mechanical devices and articles of manufacture, patents can cover processes and methods, Inventors may seek patent protection for chemical compositions such as those arising in the fields of pharmaceuticals, biotechnology, materials science, and petrochemicals. Regarding legal requirements of patentability – in order to be patentable an invention must fulfil several requirements. These requirements may broadly be classified as novelty, utility (industrial application) and non – obviousness (inventive step).

Patent Application: Preparation and Filing

A patent application is in many ways like a contract between the inventor and the government office that results in the issuance of a patent. Writing a high-quality patent application is important because it sets out in a clear fashion, the terms by which the patent owner and others will be bound. In this sense, drafting a patent application is different from writing a scientific paper. The proper drafting of a patent application takes into account technical scope, legal strategy, compliance with a vast number of rules, regulations statutory law of the concerned nation, guidelines issued by patent Office, and also takes into account hundred years of constantly evolving case law. When the patent is issued, the draft is the specification part of the document. For this reason, the patent application is also known as a patent specification.

The parts of the patent application typically include the Background, Summary, Detailed Description and Drawings, Claims, and Abstract. The patent agent is unlikely to draft the patent application in this order and should ordinarily draft the claims first. This is because the claims are the heart of a patent.

In reading a patent application:

1. the Background section sets the stage for what is to come;

2. the Summary section mirrors the claims;

3. the Detailed Description and Drawings enable the claims by providing a sufficient technical disclosure of the invention;

4. the Claims define the scope of exclusive protection, and

5. the Abstract is primarily an aid for patent searchers and normally receives very little substantive review.

A patent application may be filed via one of the following routes

1. National

A patent application is usually filed with a national patent office, and a patent for an invention can only be granted and enforced in the country where the patent is requested, under the laws of that country. Corresponding applications covering the same invention might be filed in compliance with the specific national patent rules in different countries on an individual country-by-country basis.

2. Regional

Regional patent applications may be submitted with a regional patent office, such as the African Regional Intellectual Property Organization (ARIPO) or the European Patent Office, in specific locations (EPO). Patent applications filed in the member states of a regional patent agreement have the same effect as applications filed in the member states of the regional patent agreement. Patents are given centrally in some locations as a "bundle" of national patents. In certain other regions, a single regional patent issued by the regional patent office is valid throughout the region's whole territory. It may be necessary to submit a translation of the issued patent into the national language in order for regional patents to be validated in the Member States.

3. International.

Any resident or national of a PCT Contracting State may file an international application with the national or specific regional patent offices of PCT Contracting States or the International Bureau of the World Intellectual Property Organization (WIPO). A single worldwide patent application has the same effect as multiple national or regional patent applications filed in each PCT Contracting State. Although the international phase comprises the majority of the patent application process, a patent can only be awarded by each designated State during the succeeding national phase.


[1] WIPO (2015), Guide to using Patent Information, available at:

[2] WIPO,

Author is Ms. Swechha Rana, an Advocate by profession at Delhi High court. She has experience working with Legistify Services Private Limited as a Legal Associate. She holds Master Degree (LLM) in Corporate and Security laws form Pondicherry University with First Position and bachelor's degree (B.A.LLB (1st Class) From Aligarh Muslim University, Kerala. She has published numerous papers on patent and corporate law in national and international journals.

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