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Which can be easily filed in other countries without modifications
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patent by missing a due date
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What is a Patent?
According to World Intellectual Property Organization (WIPO):
“A Patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a Patent, technical information about the invention must be disclosed to the public in a Patent application.”
Basically, a Patent draws its rights from the Government where it is filed. Once it is granted or registered, it gives rights to the applicant to exclude others from making, using, selling, offering for sale and importing of Patented product or process. It gives a sole monopoly to the applicant for a limited period of time, generally twenty years from the date of filing a Patent application for an invention in the Patent office. Patents provide exclusive territorial rights to the applicant in the country where the Patent application has been filed and granted.
In India, according to Indian Patents, Act 1970 :
“Patent” means a Patent for any “Invention” under Patents, Act 1970.
“Invention” means a new Product or Process involving an “Inventive Step” and “Capable of Industrial Application”.
“Inventive Step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
“Capable of Industrial Application” means that the invention is capable of being made or used in industry.”
Take away from the above definition and discussion : If you have come up with a technical idea or an invention or an innovation, whatever you wish to call it, which is solving some problem(s) and is providing a new way for doing something, you should protect it through filing a Patent application. If you will not protect it, it will give a chance to others to use your idea for their benefit and in the worst case, others can make money from your idea. We can understand it with a simple example: suppose you own a land (tangible property), but you don’t have a registration, in such case, others can claim and use your land, you won’t be able to take any legal action. Similarly, if you have invented (intangible property) something by using your intellect, you should claim or protect it from others and for that Government provides a Patent system through which you can claim or protect your invention(s).
i. An inventor can take
from Patent filing service companies or Independent Patent filing professionals.
ii. An inventor can himself/herself file a Patent application in the Patent office.
Filing a Patent application is a strategic decision. One needs to understand his/her objective or business need to file a Patent. It gives territorial rights to the applicant, meaning, if an applicant wants to file a Patent application in India, in that case, an applicant will get the right in India only and not in the other countries. Therefore, for securing the rights in other countries, the applicant needs to employ a Patent filing service company, which has capability to file a Patent in those countries.
Now, suppose, if you are looking for filing a Patent application in India, in that case, it is important to know that filing a Patent in India is a meticulous task requiring technical and legal knowledge and expertise. The Patent process does not end with filing a Patent application in India, but it is the start of the Patent process. There are 30 forms, intermediate Patent procedures, fees and timelines that need to be followed to obtain Patent registration. Therefore, it is important to know the Patent process in India before starting your Patent registration journey.
Understanding of “Patentable Subject Matter”, “Novelty/Patentability”, the jurisdiction of offices for Patent filing, drafting of provisional/ complete specifications, drafting of responses (if any), and many other filing formalities are some of the important details that one should not miss. To avoid the above-discussed complexities, one may take Patent filing service from the Patent filing service providers.
Before embarking on the India Patent filing, it is always advisable to have a fair idea about the below points:
a. To qualify for ‘Novelty/Newness’ : An invention or technology should not be anticipated by the prior publication in any document or should not be used in the country or elsewhere in the world before the priority date of Patent filing.
b. To qualify for ‘Inventive Step/Non-Obviousness : An invention should have technical advance as compared to the existing knowledge or having economic significance or both, and that makes the invention not obvious to a person skilled in the art. It should not just be a mere workshop improvement that can be reproduced by any skilled person in the field.
c. To qualify for ‘Capable for Industrial Application’ : An invention should be capable enough of being made or used in the industry.
d. To qualify for ‘Patentable Subject Matter’ : An Invention should not fall under the category of Non-Patentable Subject Matter that has been detailed under Section 3 and 4 of The Indian Patents, Act 1970.
Now, after Novelty/Patentability search, if your invention fulfils the above criteria, you may proceed for
The process for India Patent filing application starts with the filing of a Patent application in the designated Patent Office and only defined applicant is eligible to file a Patent application in India for Patent grant.
Filing a Patent in India can be done by two ways, through online Patent filing and physical Patent filing. Indian Patent office accepts the prescribed forms and documents along with the official fees as given under the first schedule of Patents Rule. Below are prescribed forms and documents which need to be filed in the designated Patent office either online or physically along with the official fees for initiating the Patent filing procedure.
Form-1 (Application for grant of a Patent) : It includes the details of the Inventor(s), Applicant(s), type of Patent application to be filed, title of the invention, certain declarations from the Applicant and signatures of the inventor(s), Applicant(s) and/or authorized person.
Form-2 (Provisional/Complete Specification) : It includes the information for the type of application, the title of the invention, description, claims (if complete specification), abstract of the invention.
Form-3 (Statement and Undertaking) : It includes a statement and undertaking on behalf of the inventor for updating the Controller for any foreign patent Application filed for Patent registration.
Form-5 (Declaration as to Inventorship) : A declaration as to Inventorship must be filed in the Indian Patent Office.
Form-26 (form for authorization of a Patent Agent/Patent Attorney/Patent Lawyer or any person in a matter or proceeding under the Act) : In the case where Patent Application for Patent Registration is filed by the Patent Agent or the Patent Attorney whose services are taken by the inventor(s), a form for authorization must be submitted in the Patent office.
Out of the forms mentioned above, Form 1 and Form 2 along with the official fees are mandatory to be filed to initiate the India Patent filing procedure. Without the submission of at least Form 1 and Form 2 and Official fees, the date of filing a Patent application cannot be granted by the Patent office. Although it is not advisable, but in some situations Form 3, Form 5, and Form 26 can be submitted after the submission of Form 1 and Form 2 within stipulated timelines to complete the India Patent filing procedure.
Further, in the case where the Patent application for registration in India is based on the previous Patent application filed abroad under the Convention Patent Application (as under the Paris Convention) or PCT route, a Priority document must be filed along with the application.
In the case where the previous Patent Application is in a language other than Hindi or English, a Verified Translation of the same also needs to be submitted to the Indian Patent Office.
Form-28 (To be submitted by a small entity/start-up) : To take benefit under the category of small entity/start-up, a certificate from DIPP needs to be submitted. At last, all the documents, Forms or Drawings must be signed by the authorized person or the inventor.
IPExcel, a Patent filing service organization, with its highly competent team, can equip you with the best way to navigate the complex India Patent filing procedures/other jurisdiction’s Patent filing procedures. Today, we work with Fortune 500 Companies, MNC’s, Institutes, SME’s, and Technical Start-ups and engages with National and International clients for providing Patent filing services to them.
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