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How To Protect Your Idea – Outlook Money Publication – PatentFiling Procedure, Strategy and Advantages

In September edition of Outlook Money magazine, my views were published in the article titled “How ToProtect Your Killer Idea”.

Here are some of the pointers related to same theme:

1. What is a patent?

A patent is a statutory right granted to an individual, a group of individuals or a legal entity to exclusivelystop others from making, using or selling the invention that is subject-matter of the patent.However, patent protection is always territorial in nature, i.e. a patent granted in India, can be enforcedwithin the jurisdiction pertaining to India only. The government, while granting a patent, makes sure thatthe subject matter of the patent application is new and is not disclosed or patented anywhere else in theentire world.

2. Why are patents important?

Patents are crucial for technology companies that built innovative products and offer innovative services,as they legally protect patent owner’s interest in light of competition. Everyone saw how Appleaggressively took steps to enforce its patent rights across multiple countries. For startups, patents areequally important as they can make or break their business during early stages. A well planned patentstrategy can add significant value to the company whereas absence of patent protection can result in lotof rip offs (me-too) products that can dilute the exclusivity offered by startups.

3. What are the different types of patents?

It depends upon country as different countries offer different types of protections. For example, withinUS, one can obtain utility patent, design patent and plant patent. In India, different laws govern patentsand industrial designs. Therefore, design protection is not exactly a patent right in India. Broad differencebetween patent and design is that a patent is granted for technological aspects whereas industrial designprotects aesthetic features (looks) of a product.

4. What are the laws governing patents in India?

In India, patents are governed by the Indian Patents Act, which has various provisions in line withinternational treaties such as Paris Convention and Patent Cooperation Treaty (PCT). Importantprovisions are defined in Section (3) that relate to eligibility of patent protection. All patent applicationsare examined for three main characteristics, Novelty (newness), Inventive Step (non-obviousness) andIndustrial Applications. There are provisions to oppose a patent application before it is granted, which isknown as pre-grant opposition, and similarly, there are provisions to oppose a patent within 12 months ofits date of grant, which is known as post-grant opposition. Additionally, there are provisions to get apatent revoked on certain grounds. Once a patent is granted, the patent owner is required to pay regularfee to keep it in-force, which is generally known as renewal fee, and if not paid on time, the patent rightsget lapsed. The life-term of a patent is 20 years from the earliest priority (filing) date, following which theinvention becomes public knowledge and anyone is free to use it.

5. What is the procedure for filing for patents? How much does it cost?

The procedure is pretty straight forward, the application is required to be filed in requisite format alongwith appropriate fee. The most important part is drafting a patent application, which is a skilful taskinvolving thorough grasp of technical and legal aspects. The official fee includes further bifurcationssuch as basic filing fee, examination fee (mandatory) and early publication fee (optional). Earlier, therewere two category of applicants, individual(s) and legal entity. However, after recent amendment, a thirdcategory has also been introduced. Overall, the entire process may cost between INR 50, 000 – INR1,00,000, and maybe upwards, depending upon the complexity of the technology.

6. Does it make sense for a start-up to patent their product/ idea? When shouldthey patent their product or idea?

Yes, if core business of a startup is based on technology that is innovative, it is highly advisable to file forpatent protection. However, filing a patent merely on an idea without any focus on execution may not

make much sense as such patents do not add much value to a business. Ideally, patent should befiled before the product / service is offered to public as in accordance with patent laws, once aninnovation is made public, patent cannot be filed.

7. What is the difference between a provisional and a non- provisionalapplication?

A provisional patent is a preliminary patent application that allows the patent applicant to obtain a prioritydate, i.e. file a provisional patent today and then have the right to file complete patent within 12 months.Provisional patent contains broad disclosure that sets the periphery for future application(s). It isadvisable in cases when companies need to present their offerings in public domain but are not ready tofile complete patent prior to that due to various reasons, such as, lack of time, lack of funds, product notfully developed, and the like

8. Which territories should one obtain a patent in?

It is advisable to always begin the process from the home country and then focus on territories where theconsumers will be using the patented product. Devising an international patent strategy should be a doneparallel to the international business strategy.

9. How does a start-up ensure that it is not infringing on anyone else’s IP?

They can always go for a Freedom-to-Operate (FTO) / Product clearance search, which is preferred by notonly startups but big companies as well. This will bring to light the relevant patents which might beinfringed by the startup.

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Rahul is an accomplished patent attorney with expertise in intellectual property, patent strategy & technologyconsulting for formulating profitable & sustainable patent (IP) strategy for international business. He is regularlyinvited to speak at various international conferences and workshops. His views have been published acrossfeatured international publications, including The Economic Times, Law Journals (IBA, LAWASIA), TechMagazines, Digital News Network (DNA) Asia, and BioSpectrum Asia. He serves as patent consultant & legaladvisor to international law firms, patent attorneys, technology corporations, investors, entrepreneurs & startupsworldwide. Rahul’s core expertise includes: Patents, Trademarks, Intellectual Property Rights Strategy,Technology Laws, Corporate & Securities Law, Ventures Capital Financing, Fundraising and InternationalBusiness Advisory. His practice areas include: Patent Law Advisory, Patent Drafting, Prior Art Searches, PatentInvention Disclosures, Novelty (Patentability) Analysis & Patent Infringement Research (analytics), PatentLitigation Evidence (charts), Patent Invalidation & Validation Analysis, Patent (IP) Landscape Analysis, PatentProsecution & Opposition, Office Action Responses (USPTO, EPO, UKIPO), Patent Licensing Agreements,Freedom to Operate Analysis. He has worked across a wide range of technologies, including, Software Patents,Wireless Communications Patents, Mechanical Patents, Healthcare, Life Sciences, Genetic Engineering Patents,Video (Mobile) Games, Mobile Apps, Cloud Computing, Digital Media, Biotechnology, Semiconductor & MedicalDevices. Rahul is registered patent attorney with Indian Patent & Trademark Office and a member of Delhi HighCourt Bar Association.