- Date 15 Feb 2016
- Lawyer Advocate Chandan Singh
- Skills Best Lawyer
- Location Jaipur
ABOUT THIS PROJECT
Protect and get a priority date for your patent by filing for a Patent Application—secure exclusive rights over your invention with Legal Dekho.
Overview of Patent Registration in India
One gets intellectual property right to creativity carried out by a person or a firm. In case it is unique, the government will grant you the full freedom for your product. It allows you the full right of making, using, selling or importing the merchandise or process and prohibits others from preparing so. The patents in India are administered by the ‘Patent Act 1970’, and ‘Patent Rules 1972’.
The lifetime of a Patent Registration is 20 years. The patent could be for many things, be it process, art, a method to fabricate, particular apparatus, machine, computer software, technical application, chemicals or drugs.
Essentials that determines if your invention is patentable or not:
- NoveltyThe primary qualification is that the invention should be novel and not be a part of any “prior art”.
- InventivenessThe product should not be apparent; it should not be of such nature that a layperson can come up with the same product or invention by combining the instructions of different documents that are available to the public.
- Inventive StepIt should have some technological advancement and innovative action that adds to the existing knowledge, which makes the invention not visible to any person skilled in the art.
- Utility ApplicationManufactured Applied in at least one field of activity Reproduced with the same features/properties as many times as necessary.Recreated with the same characteristics/properties as numerous times as necessary.
Different types of Patent Registration Application
- Ordinary ApplicationThis type of use is carried out when there are not any application or reference to any other application under process in the Indian Patent office. The priority date and filing date are the same for universal use.
- Conventional FormIf an originator has already filed a Patent Registration in another country and now wants to do the same, then this occurs following the conventional form. It is necessary to submit the application for Indian patent within 12 months of initial filing it.
- PCT International ApplicationPCT International application allows you file the Patent Registration application in duplicated countries, and you can tender it in up to 142 countries. It could take within 30-31 months from the foreign filing date to enter and claim assurance in each state.
- PCT National Phase ApplicationYou can file this form within 31 months from the global filing date.
Brief on Provisional Patent Registration
What Is A Provisional Patent Registration?
It is a preliminary step and is obtained to get support before being able to file a complete Patent Registration. To get a full patent, a lot of features of the design and its specifications are needed. When a person is involved in R&D even if they do not have a fully completed design or method that is patentable, they may obtain a provisional Patent Registration to preserve their work.
A provisional patent has shortcomings, principally upon the period of assurance given to the intellectual property that possesses provisionally patented.
Advantages Of A Provisional Patent Registration
- Gets Interim protection
- Establishes Priority Rights
- Tags of Commercial Potentials
- Determines the Worth of Invention
- Monetary Returns
Documents Required For Provisional Patent Filing
- Applicants Information
- Description of the Invention
- Technical aspects of the invention
Benefits of Patent Registration
- It keeps the adversaries at bay, as you have all the rights possessed to yourself.
- It improves your business interests as it enables the patent holder to accredit a premium for the invention.
- Certain patents are just like other kinds of property. Hence, it is reasonable to license or sell them.
- It makes it simpler to raise capital for your business if you are ready to sell or license the patent that you possess.
- The credibility of the originator will go up after the patent registration is done.
- The selling of the idea outright will bring in many benefits to the inventor. It only makes royalty of 5% or less, but it is highly advantageous to characters who have the idea but doesn’t have enough money to bring the discovery to the market themselves.
- Patent Registration provides the patent holder the right to prohibit others from using patented imaginations without the patentee’s permission. On the other hand, the patent owner can decide on whom to permit to use under accepted terms and hence keeping competitors at bay.
- Sue the third party in case of violation
- Improves your credibility in the market
Documents required for Patent Registration
- Fill the application in form-1
- Proof of right to file the form of patent.
- If applicable Report and undertaking under section-8 in form-3
- If a patent agent proffers the patent application, then the power of administration in form-26.
- If the form is for biological substance, then the applicant is expected to get approval from the ‘National Biodiversity Authority’, before the allowance of the patent.
- The origin of geographical origin should also be introduced in the case of biological material practised in the innovation.
- All the applications must carry the signature of the applicant
- The last sheet of the complete specification must be signed by the appellant/agent.
- MSME or StartUp India Certificate (If any)
Procedure and Prescribes Fee for registering Patent in India:
- Patent SearchIt is a conventional process to perform a prior art search to confirm the authenticity and novelty of the discovery.
- DraftingA patent is a legal document. It lays down the technicalities of the invention and describes the rights.The Patent Registration stipulations can be of 2 types:1. Provisional stipulation 2. Complete blueprint It is necessary to file the provisional specification to secure a priority date. The purposes identified in the full specification specifies the features of the ‘invention’,’ claims’, ‘area of imagination’, and the ‘method’ to perform an invention.
- Patent Registration FilingThe complete form filed with the patent registry. If only the provisional stipulation is registered, then it is necessary to present the entire requirement within 12 months and not doing so may reject the application.
Filing the Patent Application in India
|No||Stages Of The Patent Process||Form No.|
|1.||Application for grant of patent||Form 1|
|2.||Provisional/complete specification||Form 2|
|3.||Statement and undertaking under section 8 (this is only required where a patent application is already filed in the country other than India)||Form 3|
|4.||Declaration as to inventorship||Form 5|
|5.||Forms submitted only by start-ups and small entities.||Form 28|
- Journal BroadcastingUpon applying, the same will be published in the patent journal after the expiry of 18 months from the priority date. It will have the title, primary abstract describing what the patent is for, request no. and details concerning the applicant or inventor.
- Pre Grant OppositionAnyone can register for the dispute as per Section 25(1) of the Patent (Amendment) Act 2005.Grounds for which the patent may be opposed are:Prior communication Prior public use and previous general experience Obviousness and loss of inventive step Non-patent ability Insufficiency and accuracy of description Wrongfully maintaining the priority Patent Registration appeal not filed within 12 months of submitting the first application in a convention country Nondisclosure/ wrong notice of the source of biological matter Invention anticipated concerning traditional knowledge of any community, anywhere in the world.Regard to the traditional culture of any community, anywhere in the world.
- Patent ExaminationPatent examination is a critical step in the patent registration process. Once the request is published, the next step that follows is patent examination. It is not a free or an automated process. The patent applicant must demand inspection within 48 months from the date of filing of the request or the priority date whichever is first.
- GrantThe patent is granted if it satisfies all the requirements and is in sync with the patent law. It would be valid for 20 years. In the event of PCT national phase applications, the term of 20 years begins from the international filing date.
LATEST- Amended Rules on Patent laws defined in the brand-new Rules 2019:
Below categories are available for expedited examination of their Patent Registration applications:
- Small Realities
- Natural Person(s)
- Female Candidates
- Departments of the Authority/ Government
- Institutes founded by a Central, Provincial or State Act Institutions wholly or substantially financed by the Government
- Government Company as described in Section 2(45) of the ‘Companies Act’
- Candidates of nations whose Patent Registration agencies are having a contract with the ‘Indian patent office’.
- As per the new Rules, the innovators are required to be presented by the Patent Agent only upon demand by the Patent Office. The duly confirmed originals are to be submitted within 15 days of acceptance of such claim.
- As per the previous rules, the small entities every document for which the fee obligatory in respect of grant of patents, applications is to be followed by Form – 28. As per the new Rules, it is necessary for start-ups as well to file Form – 28 with every record/report for which a fee has been determined.
- As per the new Rules, no mediocre fee to be given by the applicants while filling up PCT applications. Individuals and Start-ups should be charged INR 3200 when filing the PCT through the e-PCT filing module, small existences were charged INR 8000, and large organisations were INR 16000.
- There are no fees now for the development of a certified copy of priority certificate and transmission by WIPO-DAS. Previously Individuals & start-ups were charged INR 1000 with INR 30 per extra page above 30 for the development of a certified copy of priority document. MSME’s were charged INR 2500 with INR 75 per additional page more than 30 and the large entities and Companies were charged INR 5000 INR along with 150 INR per extra page over 30, for the preparation of a certified copy of earlier records.
- As per the New Rules, any amendments or improvements have now been made to the format of Form 18A.
Tax on Benefits from Patents – Patent Box Management
- Need For A Patent Box ManagementTax evasion models are not specific to India and have been trained all over the world. Moreover, large multinational companies have the advantage to structure their business operations in a way to optimize taxes. To retain the intellectual property in the host country and to promote indigenous research and development, many countries all over the world started introducing favourable treatment for income over exploit estate.As per nexus strategy, income arising from the exploitation of intellectual property should be connected and taxed in the jurisdiction where significant research and development activities are undertaken willingly than the taxing it only in the domain which has legal ownership of intellectual property.
- Section 115BBF – Allotting With Patent Tax In IndiaSection 115BBF presents the concessional rate of taxation at 10% on royalty revenue in respect of the exploitation of patents.Applicable to an Indian resident who is a patentee Granted under Patents Act, 1970 are considered Total income of eligible taxpayer must consist of income by way of royalty Royalty income is in respect of a patent developed and registered in India At-least 75% of the expense is incurred in India by an eligible taxpayer for invention an eligible taxpayer opting to avail Section 115BBF advantage is required to furnish Form No. 3CFA duly verified electronically.Form 3CFA shall be flawless in all respects and be filed on or before the due date for providing the return of income under Section 139(1)Form 3CFA needs specific general details (such as name, PAN, address of taxpayer etc.), aspects of the patent (such as the description of the patent, patent number, date of grant of a patent, whether granted to a single person or in joint) and features of royalty income and also investment incurred in India as well as outside India Specifications of each eligible patent should be published individually along with royalty income and investment details The Director-General Income-tax (Systems) shall specify the procedures, formats and standards to ensure secure capture and transmission of data and shall also be responsible for evolving and implementing appropriate security, archival and retrieval policies to furnishing and verification of Form No. 3CFA Terms ‘invention’, ‘Patent’, ‘patented article’, ‘patented process’ and ‘true and first inventor’ shall have the meaning assigned to them in Patents Act.
- Is It Mandatory?First and foremost, the applicability of Section 115BBF is not necessary, and the qualified taxpayer has an option to avail the advantage under Section 115BBF. Moreover, once an opportunity to avail the advantage of Section 115BBF is employed in any year, the eligible taxpayer is required to proceed to avail the benefit for the next five years.