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Patent Acceleration in India is limited to 1000/yr. - Lexinvent Pvt Ltd - IP Law Firm

Patent Acceleration in India is restricted to 1000/yr

Patent Acceleration is restricted to 1000/yr.

Think of yourself going on a highway and suddenly there comes a sign board showing that no speed limits on that highway, and with a condition that you can only drive for about one mile but not full length. You will obviously get an understanding that the restricting is due to road damage or improper high way infrastructure or any repairs on the road.

This is the situation with Indian patent office recently.

Filing patent for an invention is important and receiving a grant at the earliest for such invention is crucial to market it and commercialize. Most of the world-wide IP Offices are now concentrating on “how to grant speedier way” for which most of the countries IP offices are following Accelerated Examination System or Patent Prosecution Highway.

We all know that on May 16, 2016 India released its IPR Policy document and also within two days they notified New Patent Rules, 2016 making way for the Expedited/Accelerated Examination process of the Patent application. Within less than a month, this situation became “Limited Service”.

However, in the rules it is also mentioned certain condition that “Start-up” companies or applications which have opted ISA/IPE as “India” in their PCT application are qualified under this Expedited Examination Scheme.

Initially everyone thought that Indian has geared-up to the situation at least now but not late, after the announcement of accelerated examination scheme of the patent application.

And by the situation of India making effective one-after-the-other new and amended provisions like bringing IPR Policy, New Patent Rules, 2016, Settlement of professional fee towards filings by start-ups by IP offices to the attorneys etc., have given a good sense that India is doing great job in the year 2016.

While, this situation is continuing, recently Controller General of Patents, Designs & Trademarks of India issued a public notice citing Rule 24(c)(13) restricting the Patent applications be allowed for Accelerated Examination to 1000 for the complete year 2016 i.e., until December 31, 2016.

Now the situation of Accelerated Examination in India has become “Limited & First-cum-First service” irrespective of their seniority of the pending applications with the Indian Patent Office.

To, be more clear, I would say in a situation where two pending patent applications before the IP office in India, the one who files expedited examination at the earliest before filling this 1000 application restriction will be considered for grant. Even that if your application is filed and pending with the IP office since 2012, the application filed & requested for this Scheme in the year 2016 immediately before the filling of 1000 applications restriction will be given opportunity of expedited examination and grant.

Obviously, this situation is looking some thing strange in the Industry and also for the first time with Government organizations where putting a cap of 1000 applications per year.

Such restriction shows that there may be some roadblock in the Indian IP offices where these offices are not geared-up fully to the situations or lack of examiners or sometimes to test the situation of Accelerated Examination procedure in the country as it is totally new.

One way Indian IP offices are great in raising the curtain for Speedier Examination of the applications and other way they make the roadblocks for the effective implementation of this system.

Now the conditions put for any application to be considered for Accelerated Examination are:

  • Applicant Should be a “Start-up” company; or
  • Its PCT application should have elected “India” as ISA/IPE; with a condition that
  • Only 1000 requests will be considered for the year 2016 until December 31, 2016.

What ever, the condition, the Indian IP offices must have made certain assessment reports before bringing this Accelerated Examination provisions. And any provision to hamper the situation of seniority of the pending application will give an improper way of dealing the matters. Shows that IP Offices are still far way to go, to make them fully active.

So, don’t think that the Indian patent office will take-up applications for examination in the seniority of the application filed. The following applications procedures will be given priority.

  • First Priority – Application filed + Request for Examination filed + Request for Expedited Examination filed.
  • Second Priority – Application filed + Normal Request for Examination filed.
  • Third Priority – Application filed + Request for Examination to be filed.

Hence, the “Limited Service” offered by Indian IP Offices be availed in a “First-cum-First Serve” manner.

 

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