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PATENT APPLICATION FILING INDIA
An application for a patent can be filed by the true and first inventor. It can also be filed the by the assignee or legal representative of the inventor. If an application is filed by the assignee, proof of assignment has to be submitted along with the application. The applicant can be national of any country.
Form of Application
Every application shall be accompanied by a provisional or complete specification. Provisional applications are generally filed at a stage where some experimentation is required to perfect the invention.
Filing of a provisional specification allows the applicant to get an early application date.
A Provisional Specification shall contain:
a. Title,
b. Written Description,
c. Drawings, if necessary and
d. Sample or model if required.
The complete specification shall contain:
a. Title,
b. Abstract,
c. Written Description,
d. Drawings (where necessary),
e. Sample or Model (if required by the examiner),
f. Enablement and BestMode,
g. Claims and
h. Deposit (Microorganisms)
a. Title
Title is generally a word or a phrase indicating the content of the invention.
b. Abstract
It is a short paragraph describing the invention in a precise manner.
c. Written Description
This is an important part of the specification. It contains the complete and elaborate description of the invention.
Written Description generally starts with a background of the invention. The written description explains the invention clearly and comprehensively, with the help of examples, drawings and models, where and when required.
d. Drawings
The written description might be supplemented with drawings, where and when required. The drawings should be clearly labeled.
e. Samples or Models
On initiative of the inventor or when required by the patent examiner samples or models might be submitted to the patent office. Such samples or models will provide a better understanding of the invention.
f. Enablement and Best Mode
The applicant has to enable his invention in order to allow a person with ordinary skill in the art to make and work the invention. He should not only enable, the applicant should also describe the best mode of carrying out the invention.
g. Claims
Claims define the metes and bounds of the invention. They are the most important elements in a specification.
h. Deposit
If an invention involves microorganisms, which cannot be described by writing. A sample of the microorganism has to be deposited at an internationally recognized depository. There is an internationally recognized depository at Chandigarh
A provisional specification cannot be filed if an application has been filed in a foreign country (Convention country) before the Indian filing and if the application is a PCT application. A complete specification has to be filed within twelve months (extendable to fifteen months) of filing the provisional specification. Each specification should contain only one invention. If there is more than one invention in a specification, separate applications have to be filed for each invention.
3. Priority Date
Priority date is the date of first filing allotted by the patent office to an application. If a provisional application is followed by a complete application, the priority date shall be date of filing of the provisional application. If an Indian application is filed after a foreign or PCT application, the priority date shall be the date of filing of the foreign or PCT application. If an application is divided into two applications, the priority date shall be date of filing of the parent application.
Priority date is the date of reference used by the patent to determine the newness of the invention. If the claimed invention is part of public knowledge before the priority date, it will not be eligible for a patent. Under US Law, priority date is pushed back to the date of conception for determining novelty and Non-obviousness.
4. Place of Filing
Patent Application can be filed at any of the four patent offices in India. Patent Offices are located at Kolkata, New Delhi, Chennai and Mumbai.
5. Documents to be submitted at the time of filing.
The following documents have to be submitted at the time of filing a patent application:
a. Form 1 - Application for the grant of patent.
b. Form 2 - Provisional or Complete Specification.
c. Form 3 - Statement and undertaking by the applicant.
d. Form 5 - Declaration as to inventorship.
e. Form 26 - Authorization of patent agent or any other person.
Priority document details have to be filed for a Convention application.
B. PUBLICATION
A patent application will be published on expiry of eighteen months after the priority date. It can be published earlier, if such a request is made by the applicant. The application will not be published if directions are given for secrecy, until the term of those directions expires. It will also not be published if the application is withdrawn three months before publication date.
On publication, specification including drawings and deposits shall be open for public inspection. The rights of the patentee start from the date of publication but they cannot be enforced until after patent grant.
