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PCT national phase in India, filing requirements and procedure

The basic mandatory requirements for filing a PCT National Phase Patent Application in India are as follows:

  1. PCT Application details- Application no. and date of filing.
  2. Name, address, particulars and nationality of applicant/s for patent
  3. Name, address and nationality of inventor/s of patent
  4. English Translation of PCT Application i.e. description, claims, abstract, drawings (if any), sequence listing (if any)
  5. Priority Application details- Name of applicant, Title and IPC Code, Priority Application no. and date of filing

Please note that it is no possible to change the Application details while filing the Application in India, except to delete the claims. Any amendment can be made by filing a request as per procedure after national phase has been entered. To avoid payment of the amendment fee it is desirable that the concerned amendment by made directly with the WIPO.

Other requirements towards PCT National phase patent filing in India:

  1. Power of authority in favour of Indian Patent Attorney/ agent, to be stamped in India, notarisation not necessary.
  2. Declaration as to inventorship within 1 month of filing application
  3. Certified copy of priority document or PCT/IB/304 within 31 months from date of priority
  4. English translation of Priority documents along with certificate of translation in support within 31 months from date of earliest priority
  5. Details of all corresponding foreign application within 6 months of filing of application and/or within 6 months of filing of Patent application in any country outside India.
  6. Proof of right in favour of applicant from inventor in writing (assignment deed, employment agreement or any other arrangement) preferably notarised within 6 months from filing of application.

Discount in Official Fee for natural persons/ start ups/ small entity

India allows 80% discount in official fee to natural persons. However in the event the patent or application is assigned to non-natural person, the entire discounted fee has to be paid at the time of registration of assignment.

Further w.e.f. February 28, 2014, small entity has been introduced in India and a discount of 50% in official fee is allowed to small entities. Small entity means an entity whose investment in plants/ machines in case indulged in manufacturing/ production of goods is less than 10 crores (approx. 1.6 Millions US Dollars, RBI reference rate shall prevail) and in case indulged in service industry the investment in equipment is less than 5 crores (approx 0.8 Million US Dollar, RBI reference rate shall prevail). It is to be noted that while calculating investment in plants and machinery, the cost of pollution control, research and development, industrial safety devices, and such other things specified under THE MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006 is to be excluded.

An affidavit duly executed and notarised could be filed along with Form 28 to claim the small entity status.

Besides with effect from May 16, 2016, a new category of Applicant, start up has been introduced and for start up, a discount of 80% in official fee (same as for natural person/s) is available. 

“Startup” means an entity, where-

(i) more than five years have not lapsed from the date of its incorporation or registration;

(ii) the turnover for any of the financial years, out of the aforementioned five years, did not exceed rupees twenty-five crores (approx 4 Million US Dollar as per RBI reference rate dated March 4, 2014); and

(iii) it is working towards innovation, development, deployment or commercialisation of new products, processes or services driven by technology or intellectual property:

Provided that any such entity formed by splitting up or reconstruction of a business already in existence shall not be considered as a startup.

Provided further that the mere act of developing

a. products or services or processes which do not have potential for commercialisation, or

b. undifferentiated products or services or processes, or

c. products or services or processes with no or limited incremental value for customers or workflow, would not be covered under this definition.

Explanation 1.- An entity shall cease to be a startup on completion of five years from the date of its incorporation/ or registration or if its turnover for any previous year

exceeds rupees twenty-five crores.

Explanation 2.- Entity means a private limited company (as defined in the Companies Act, 2013), or a registered partnership firm registered under section 59 of the Partnership Act, 1932 or a limited liability partnership under the Limited Liability Partnership Act, 2002.

Explanation 3.- The term “Turnover” shall have the same meaning as defined in the Companies Act, 2013 (18 of 2013).

Explanation 4.- An entity is considered to be working towards innovation, development, deployment or commercialisation of new products, processes or services driven by technology or intellectual property if it aims to develop and commercialise a new product or service or process, or a significantly improved existing product or service or process that will create or add value for customers or workflow.

Explanation 5.- The reference rates of foreign currency of the Reserve Bank of India shall prevail.’.

Patent prosecution in India includes the following stages:

  1. Filing of patent application
  2. Publication of patent application on request or after 18 months from date of filing or priority whichever earlier
  3. Filing of request for Examination within 48 months from date of application or priority whichever is earlier
  4. Issuance if First Examination Report containing all the objections to grant of patent for complying within 12 months from date of issuance of same
  5. Responding to the examination report and compliance
  6. Issuance of further Examination report/s till all objections are complied as per satisfaction of the Examiner
  7. Responding to further Examination reports till all objections are complied or objections are contested
  8. Interviewing the Examiner
  9. Hearing with Controller, if requested within prescribed time and objections are contested
  10. Acceptance of patent application on or before final date of acceptance i.e. 12 months from date of issuance of first examination report
  11. Grant of Letter Patent Document by Patent office within 7 days of acceptance of application

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Date : November 09, 2019
Location: Taipei, Taiwan

APAA 70th Council Meeting

70th Council Meeting of Asian Patent Attorneys Association was held in Taipei, Taiwan from November 9 to November 12, 2020

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