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For getting a granted Patent in India, an applicant needs to file Patent application in the Indian Patent Office (IPO) . Different types of Patent applications can be filed in the IPO depending upon one’s strategic requirement for Patent filing. Indian Patent Law provides provisions for filing different types of Patent applications in India, so one needs to understand first, which Patent application is appropriate for filing. In the next paragraph, we are going to discuss about different types of Patent applications.
A list of different types of Patent applications is provided below. One can get the basic idea about them after reading the below mentioned details and can file Patent application as per his/her requirements. It is important to understand the purpose of a Patent application before choosing to file patent application. We will discuss one by one, why, when, and which kind of Patent application one should choose to file Patent application.
a) Provisional Patent Application
b) Complete Patent application/Non-Provisional Patent application (as known in USA)
c) PCT application
d) Convention Patent application
e) Patent of addition Patent application
f) Divisional Patent application
A Provisional Patent application is a provision provided by Indian Patent Law, which allows an applicant to obtain an early priority date for his invention. As the Indian Patent system follows the first to file system, it is important to secure the invention in the early stage. In simple words, the first person to file patent application gets the right to claim for a patent for the invention.
It is said that there are always at least two people thinking about the same idea in the world and therefore, it becomes very important for any person to file patent application as soon as possible. However, a complete patent application (discussed below) requires a lot of details, strategy and time for preparation and filing. Therefore, the Indian Patent system enables filing a provisional patent application to secure the priority date or the date of patent filing. However, the provisional patent application is a temporary Patent application.
Therefore, filing of complete Patent application is mandatory within twelve months from the priority date/date of filing a provisional patent application. Unless, the complete Patent application is filed within the prescribed timeline following the provisional patent application, the previously filed provisional Patent application will be considered as abandoned. Therefore, it is important to file a complete Patent application after filing a provisional Patent application within the prescribed timeline.
Furthermore, the filing formalities and legal requirements for filing a Provisional Patent application are lesser compared to the complete patent application. Also, filing a provisional Patent application requires less technical details of the invention, which reduces the time, effort and cost of filing a provisional patent application. Therefore, by filing a provisional Patent application at the early stage, one can provide a shield to his invention in the ideation stage.
A Complete Patent application is a permanent Patent application filed in the Patent Office. It is a techno-legal document that requires technical, structural and functional details of the invention which should fully and particularly define the invention in the best possible way. It should be drafted in a manner prescribed by the Patents Act & Rules. Specification of complete Patent application should contain the title of the invention, abstract, claims, enablement of the claims with the description of the invention, the best mode to use the invention and drawings (not compulsory).
The full form of the PCT is Patent Cooperation Treaty (PCT). It is an international treaty administered by WIPO. The objective for the treaty is to simplify the Patenting process for an invention in multiple countries for an applicant belonging to a member country. An applicant belonging to any of the member countries can file patent application as a PCT application. It can either be filed in the member country (receiving countries) or directly with the International Bureau (IB) in WIPO.
If an applicant is claiming a priority date for a filed Patent application from other country and wishes to file a PCT application, in that case, it is important to file a PCT application within twelve months from the priority date. However, if an applicant is not claiming any priority and filing a PCT application directly, in that case, the international filing date will be considered as the priority date.
Here, one important point needs to be understood that filing of a PCT application itself is neither a patent application nor it provides protection by default in any of its member countries unless a corresponding National Phase Patent application is filed in the intended member country.
Filing of a PCT application can provide several benefits to the applicant. It provides an additional eighteen months of time to enter in any of its member states. Meaning, if an applicant is filing a first Patent application in the member country, then the applicant has thirty/thirty-one months (as the case may be) time to file the National Phase Patent application in any of its member countries.
Therefore, unlike conventional Patent filing route (discussed below) where the applicant gets only twelve months’ time from the priority date to enter into any of the intended countries, the PCT route provides you an extended timeline 18 months in addition to the 12-month timeframe. With this extended timeline, an applicant can get some more time to assess the market of the interested country and can make informed decision for filing of the Patent application. Further, PCT filing also provides a search report and written opinion issued by International Searching and International Preliminary Examining Authorities under the PCT. In light of the search report, one can fine-tune his Patent application while entering into the National Phase of the intended country which may increase the chance for getting the granted Patent in the member country and by considering the search report, an applicant can take the strategic decision for entering into the member country.
If a Patent application is filed in one or more convention countries (as per Paris Convention) independently, it is called as a convention patent application. In this case, filing of convention Patent application allows an applicant to claim the priority date based on the same or substantially similar application filed in one or more of the convention countries previously. In India, in order to get the convention status, an applicant has to file Patent application in the Indian Patent Office within twelve months from the date of first filing of a similar application filed in the convention country.
In India, Patent of addition is a provision given under Indian Patents Acts, 1970. If there is a slight modification in the invention for which an applicant has already filed or obtained a Patent, the applicant can file a Patent of addition for the new modification. The benefit of filing a Patent of addition is that there is no need to pay the separate renewable Patent fee for the Patent of addition. It will be paid along with the main Patent and it expires with the main Patent.
Sometimes, a Patent application filed by an applicant may claim more than one invention in a single filed patent application. In such scenario, the patent application may be divided into two or more patent applications, where each of the divided patent application is known as a divisional patent application. In one case, the division of the patent application may be done voluntarily by the applicant if he feels that there is more than one invention in his previously filed patent application. In the second case, the applicant is required to divide the patent application into two or more divisional patent applications based on the order issued by the controller of the patents. The priority date for all the divisional Patent applications will be the same as that of the parent or main filed Patent application.
The decision to file patent application is a strategic one. One may need to invest a lot of money, effort and time in order to come out with the best possible way to file Patent application. It is to be understood, that Indian Patent Law requires that Patent Applications being filed in India should be filed under one of the 4 patent offices located in the metros of India. One can identify the relevant patent office in India based on their location as the 4 patent offices are divided based on zones and people filing patent application in India can identify the respective patent office based on applicant’s address. However, the relevant patent office may be different in three different situations.
First situation is where the applicant is residing in India and files the Patent application by themselves. In this situation, if an applicant is residing/has address in Bangalore or Hyderabad and wishes to file patent application in Bangalore or to file patent application in Hyderabad respectively, the applicant has to file patent application in the Chennai Patent Office as Karnataka and Telangana come under the zone of Chennai Patent Office. By law it is not allowed for an applicant who wishes to file patent application in Bangalore to file patent application in the Delhi Patent Office. Similarly, a person wishing to file patent application in Hyderabad is not allowed to file patent application in Mumbai Patent Office.
Second situation is where the applicant is residing in India and wishes to file patent application through a Registered Patent agent\Patent Attorney. In this situation, the address of the Patent Agent shall not matter, and the patent application has to be filed in the patent office based on the address of the applicant as discussed above. Continuing with the same example, if the applicant wishes to file patent application in Bangalore or to file patent application in Hyderabad and the Registered Patent agent engaged by the Applicant is from Delhi, still the patent shall be filed in the Chennai Patent Office.
Third situation is where the applicant does not have any presence in India and wishes to file a convention patent application or a National Phase PCT application in India. In such scenario, the patent application has to be filed through a patent agent or a patent attorney in India and the relevant patent office shall be decided based on the address of the Patent agent or the Patent attorney.
One thing is important to consider, as Patent provides territorial rights in a country where it is filed/granted. So, it is important to consult authorized Patent agent/Attorney of that particular jurisdiction to file Patent application in that jurisdiction. Sometimes, it is difficult for the client to find the best authorized Patent agent/Attorney for the Patent filing matter in different jurisdictions. In India, as most of the tech companies are in metros, so if you want to consult Patent service provider in metros, by a simple internet-based search, one can find Patent filing service provider, who can help you to file Patent application in Bangalore and to file Patent application in Hyderabad.
IPexcel can provide you the best possible Patent filing services in India and in other jurisdictions. IPexcel, with its dedicated team can provide you a Patent filing service in the National and International level. Also, we can provide you a service to file Patent application in Bangalore and to file Patent application in Hyderabad from our Bangalore and Hyderabad offices.
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