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6 things startups must know before file a patent in India

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One of the most common challenges that growing businesses face is the need to prove the company’s unique and distinctive identity to investors and potential customers. Filing a patent not only helps secure ideas, innovations and businesses but also creates a prospective revenue base. However, it is very important to do it properly from the outset because filing a poor patent application, even a provisional one, can end up costing more than not filing a patent at all.

There are a few things start-ups should know before making a decision tofile a patent in India:

  1. Indian patent protection isn’t global

Filing an application for a patentin India does not protect inventions worldwide. However, it enables the applicant to file a corresponding application for the same invention in other countries that are relevant to the invention, within twelve months from the date of filing in India, the applicant can go for Conventional Patent route or PCT application route to protect invention in different countries. Ideally, patents should be obtained in every country where the applicant requires protection of their invention. For this, a basic knowledge of patent laws in different countries can be helpful.

2. Types of patent applications

-Ordinary Application

is filed if there is no priority to claim or when the application is not filed in pursuance of any preceding convention application. A non provisional application must be supported by a complete specification depicting the invention in detail.

-Convention Application

is filed for claiming a priority date based on the same or similar application filed in another convention country within 12 month from the date of filing of application in the respective country.

-PCT International Application

is an international application to streamline the patent application process in many countries at once. This application is governed by the Patent Cooperation Treaty and can be validated in upto 142 countries within 12 month from the date of filing of application in the respective country.

-PCT National Phase Application

is filed in each of the countries wherein protection is sought. The national phase application must be filed within 30 or 31 months from the priority date or the international filing date, whichever is earlier.

-Patent of Addition

can be filed if there is a modification of the invention which has already been applied for or patented. An additional patent can only be granted after the parent patent has been granted.

-Divisional Application

is filed if the applicant wishes to divide an application to draft two or more applications in a situation that claims more than one invention.

3. Criteria for patentability

An invention is patentable subject matter if-

-It is novel

-It has inventive steps or is non-obvious

-It is capable of industrial application

-It doesn’t attract the provisions of section 3 and 4 of the Patents Act 1970

The three terms ‘new’, ‘inventive step’ and ‘industrial application’ are the three primary criteria for patentability in India. An invention should involve technical advancement as compared to existing knowledge, be capable of industrial application i.e. useful and have economic significance.

According to the Indian patent registration requirements, the following inventions are not patentable:

Section 3 –

(a) an invention which is are frivolous or which claims anything obviously contrary to well established natural laws;

(b) an invention the primary or intended use or are not patentable. Additionally, inventions whose commercial exploitation of which could be contrary to public order or morality or which causes could cause serious prejudice to human, animal or plant life or health or to the environment;

(c)        the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or are also declared as non-living substances occurring in nature;non-patentable.

(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;

(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

(f)  the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(h)  a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

(j) plants and animals in whole or any part thereof other than micro­ organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

(k)   a mathematical or business method or a computer programme per se or algorithms;

(l)   a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n)   a presentation of information;

(o)   topography of integrated circuits;

(p)   an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

 4. Prior-art search

Beforefiling for a patent, it is important to check already existing and patented inventions to confirm originality. This helps businesses understand if their inventions overlap or are closely similar to existing ones. For this, a patent database search works best.

5. Knowing the right time to file it

Securing an early patent filing date is always recommended even if it is a work in progress, which is then considered a provisional patent application. A provisional patent application can be converted into a complete specification within a year of filing.

6. Basic requirements for a patent

-A written document that contains a specification which includes details about the description specifications such as the invention’s title, the invention’s background, a brief summary, a claim, and a detailed description of the invention, along with any cited prior art to related applications.

– Drawings shall accompany the specifications to which they relate to understand how the invention works.

-Oath or declaration from the inventor stating that they believe themselves to be the original inventor of the application’s invention, and signed by the inventor themselves.

When applying for a new patent, inventors must consider that it involves announcing their technology to the public, leaving the door open to competitors to patent similar technology or block further development of the technology by patenting their own upgraded version. In such situations, guidance of an Indian patent attorney or a patent law firm can be extremely helpful.

Nonetheless, the benefits that startups receive from getting patents generally outweigh the risks. For startups looking to engineer success, a patent is the fuel that helps keep them going for long without losing out on opportunities by giving them an edge over their competitors. Owning a patent helps in preventing theft of intellectual property, gives right to exclusivity, right to commercialize the idea and increase the marketability and monetary value.

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