Introduction to Patents and Their Importance

One kind of IP right, similar to trademarks and copyrights, is a patent. The Latin word patere, meaning "to lay open," as in render accessible to other people's examination, is where the concept of patent originates. An innovation is not allowed to be made, used, or sold by anybody else for a particular or predetermined period without a patent, and any attack on a patent owner's exclusive rights or title is referred to as infringing of a patent. The Patents Act, 1970 is the legislation that governs patents in the country.

International patent filing is a crucial step for innovators looking to protect their inventions beyond their home country. Through mechanisms like the Patent Cooperation Treaty (PCT), inventors can simplify the process of seeking patent rights in multiple jurisdictions. By filing a global patent application, creators can strategically manage their intellectual property, delay costs, and evaluate market potential in various countries. These methods ensure comprehensive international intellectual property protection, making innovation commercially viable on a worldwide scale.

Need for a Robust Patent Framework in India

A sophisticated framework of IP rights is an absolute necessity for any knowledge-based economy. A strong system pertaining to patents is necessary for both scholarly studies and advances in technology. The number of unicorns and emerging businesses in the country is on the rise, and an active entrepreneur community requires an effective patent framework.

Territorial Nature of Patents and the Need for International Filing

Patents have a territorial limitation; that is, an inventor's rights are safeguarded only inside the borders of the nation if a patent is issued or approved there. For a unicorn, an individual inventor, or a business that is keen to increase revenues and recover the invested expenses incurred in R&D, this restriction may work against them. In this article, I attempt to study and deconstruct the process of filing an international patent application.

Exposition: Methods of Filing an International Patent

A creator can usually patent his or her creation worldwide via three distinct methods. Selling items or granting licenses to third parties may offer an earnings source in the other country where the patent has been granted. The following are the various methods:

Direct Application

Approaching the patent offices in various nations and concurrently filing an application would be a more straightforward course of action. However, managing each application might call for a tedious and high-cost process. This works effectively if there are only a few states to submit applications to and a clearly identifiable marketplace.

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Convention Application

An applicant may submit one or more applications in any of the Paris Convention member states within a year of the initial filing date, provided the nation in question is also a party (India joined in 1988). The primary benefit is that it gives the applicant an extra year to consider and select the countries for submission.

Patent Cooperation Treaty (PCT)

Filing under the Patent Cooperation Treaty (PCT) is arguably the easiest method to obtain global patent security (India joined in 1998). Applications may be submitted immediately or within a year of the earlier filing date. The greatest benefit lies in allowing the applicant to defer decisions on jurisdictions for up to thirty months. Though the PCT has higher upfront costs, it streamlines the process across over 150 member countries.

In this article, the focus is primarily on the Patent Cooperation Treaty and analysis of the filing system.

A Brief Study of Patentability and Indian Law

‘Invention’ is defined as per:

Section 2(1)(j): A new product or process involving an inventive step and capable of industrial application;

Section 2(1)(l): A new invention not anticipated by prior publication or use in India or elsewhere in the world before the date of filing.

Novelty Requirement

The innovation must meet the novelty (newness) requirement—none of the components of the invention should be present in any prior art. A novelty search is typically conducted by patent attorneys within 3-4 days.

Judicial Interpretation

In Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co, the court emphasized the necessity of novelty and utility, with novelty being the real test.

Knockout Search: Assessing Patent Originality

A "knockout search" aims to eliminate existing inventions that are exact or dangerously similar to the subject patent. It verifies the originality of the invention within a day and is commonly done by IP professionals to expedite assessment and save resources.

Clearance Search and Avoiding Legal Trouble

Before releasing a new invention, a “clearance search” ensures it doesn’t infringe upon existing IP rights. This involves checking trademarks, patents, copyrights, and other relevant IP databases.

Such a search protects against legal issues, often arising in underdeveloped nations where "patent trolls" may file lawsuits to extract money. A quick Right-to-Use (FTO) analysis can help avoid this.

Purposes of Right to Use (FTO) Search

Examine the invention’s patentability criteria

Identify competing patents

Formulate marketing strategies

Develop pricing schemes

PCT and Global Patent Application Benefits

Each Indian patent grants rights only within India. Fortunately, over 150 countries have signed the PCT, simplifying global filing. The PCT is a filing system, not a granting mechanism, allowing for streamlined applications to multiple countries.

Advantages of the Patent Cooperation Treaty

Postpones international filing expenses

Offers a centralized search process

Allows applicants to amend documents before review

Maintains legal protection in most signatory countries for at least 30 months

Who Benefits Most?

Large MNCs, especially in pharma, commonly use the PCT route. For individual inventors, it may be costly and less practical unless there is clear global market potential.

It is evident that there are several methods available for submitting an international patent application. The decision should align with the inventor’s business goals and IP strategy. To secure rights abroad, inventors must file in each relevant country and choose the most suitable, cost-effective filing method.

Securing a worldwide patent is essential for businesses aiming to expand their innovations globally. The process of foreign patent filing allows inventors to safeguard their creations in multiple countries under a unified framework. Leveraging tools such as international patent registration, entrepreneurs and companies can prevent unauthorized use of their inventions across borders while optimizing the time and cost involved in filing separate national applications. This approach not only enhances global competitiveness but also supports long-term growth in international markets.