In India a provisional patent application is filed to gain the earliest filing date priority date for the invention. Reserving the earliest filing date is important in terms of patent grant process. In general, post-dating refers to the shift in the Priority date of an application to a later date. General perception was that the provision of post dating is provided to extend the 12 months time to submit the complete specification after the provisional application. Hence, the question arises does Indian Patent Act has a provision of extending the 12 months time period. Upon review of Section 9 and Section 17, it is observed that both the sections does not contain any provision about shifting the month deadline for filing the complete specification. The Amendments carried out in the Patents Act in deleted the portion of the then-prevalent Section 9 1 which provided that complete specification may be filed at any time after 12 months but within 15 months from the filing of provisional specification if a request in this regard was made to the Controller along with the prescribed fee.
FAQ – India
Please contact customerservices lexology. Section 17 of the Indian Patents Act provides for postdating of patent applications. The preamble to Section 17 clearly states that the provisions of Section 17 are subject to the provisions of Section 9, which means that all sub sections of Section 9 must be complied before implementing Section
(2) They shall come into force on the date on which the Patents (Amendment) Act, rules, at the postal address or e-mail address, appearing on the application or an application corresponding to an international application in which India is.
Post-dating means to change the priority date of a patent application to a later date. The Indian Patents Act facilitates a patent application, whether provisional or non-provisional, to be post-dated under Section 17 of the Patents Act, , to a maximum of six months, from the date of making of such application, provided that the request for post-dating has been filed by the applicant before the grant of the patent.
Similar provisions of post-dating a patent application also exist in New Zealand and United Kingdom. However, the United States of America does not have any provision for post-dating of patent applications. Justice N. In certain cases, post-dating of a patent application may provide the applicants with an extension of time to complete certain post-filing formalities of the patent application. However the applicant should ensure that the invention covered by the patent application has not been publically disclosed either by the applicant himself or by any third party before post-dating the application.
It is preferable if a thorough search of patent and non-patent literature is conducted to ensure that there is no disclosure of similar subject matter as that of the invention, by any third party, in the intervening period. In situations where an applicant has filed a provisional specification followed by a complete after provisional CAP specification, the applicant, under Section 9 4 , may request the Controller, any time before the grant of the patent, to cancel the provisional specification and post-date the provisional specification to the date of filing of the CAP.
Under Section 17 1 , the applicant has the option of filing a request to the Controller to post-date any application by a maximum period of six months from the original filing date. Such post-dating is subject to the provisions of Section 9.
213 Right of Priority of Foreign Application [R-08.2017]
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(1) Every application for a patent shall be for one invention only and shall be and post-date the application to the date of filing of the complete specification.
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Transmission, receipt or use of this website does not constitute or amount to a lawyer-client relationship. The firm does not warranty the accuracy or authenticity of information available on any third party websites referred to or linked to this website. The Indian Patent Act, however, provides a remedy for a situation where the complete specification discloses and claims more than one invention or more than one group of inventions where each group is not linked by a single inventive concept.
The remedy involves filing a divisional patent application. On the ground that the claims of the complete specification relate to more than one invention. Thus, the applicant for a patent may voluntarily file a divisional patent application or with a view to remedy an objection raised by the Controller, in the event the claims of the complete specification relate to more than one invention. It is, however, imperative that the claims sought to be divided out from the parent patent application and included in the divisional patent application be based on matter disclosed in the provisional or complete specification already filed in respect of the first mentioned application, i.
Postdating of patent applications at the Indian Patent Office
This guide provides you with an introduction to patents and patenting procedures. It will help you understand what patents are and get started with your patent application. This electronic version of the guide is the official version. If there are inconsistencies between this guide and the applicable legislation, the legislation must be followed.
The date of first filing of a patent application is called the priority date. In some countries, like India, there is an option of post dating the 12 month period by.
Law College, Pune University. The World Trade Organisation defines intellectual property rights as the rights given to persons over the creations of their minds. Patent is such form of intellectual property rights, similar to Copyright, Trademark and Design. Patent gives exclusive rights over the use of such creations for a specific period of time. In India, patents are governed by the Patents Act, , which enumerates provisions regarding everything about patents, including the procedures for filing applications for patent.
Section 6 of the Act provides for the persons entitled to make an application for a patent. Any person who is the first and true inventor of an invention can apply for a patent in regards to that invention in the patent office.
Post-dating of patent applications and its implications
In the context of Industrial design protection relates to the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, ornamentation of any article made by industrial, industrial commodity or handicraft. Read more Patent is a monopoly right granted by the State to an inventor for a limited period, in respect of the invention, to the exclusion of all others.
In turn, it is obligatory for the inventor to disclose complete details of the invention to ensure that it can be worked on a commercial scale.
If postdating is allowed after publication of the application, the fact of postdating should be published in the Official Journal to specify a new date.
Short title and commencement. Form of procedure of appeal or application. Appeal or application to be in writing. Documents to accompany appeal or application. Verification of the appeal or application. Presentation and scrutiny of appeal or application. Notices of appeal or application to the respondents. Filing of counter-statement to the appeal or application and other documents by the respondent.
Patent Filing Services Ahmedabad, India
After the creation of an idea, it is required to be protected through the office of the patent so that no one uses the patent without authorization of the real creator. For that, it requires to file a patent application at the designated patent office in a prescribed form with government fees. A series of actions are required to be performed before getting your patent granted, which begins with the prior art search, patentability analysis followed by preparation of patent draft or patent specification.
Power of Controller to make orders respecting dating of application. section 9, at any time after the filing of an application and before the grant of the patent under this Provided that no application shall be post-dated under this sub-section to a date later than six Can I file for a patent outside India, without filing in India.
Post dating means to change the priority date of a patent application to a later date. The Indian Patent Act enables a patent application to be post dated under Sec 17 of the Patents Act to a maximum of 6 months from the date of making this kind of application, provided that the request for post dating is made before the grant of the patent.
The importance of securing earliest priority date for a patent is a known fact. In fact filing of provisional application is done for this precise reason. But if that is a known fact, why in certain cases inventors choose post dating for their patent applications? The general perception behind the requirement of post dating is that post dating is done to extend the 12 months timeline to file the complete specification after filing a provisional specification, as in some cases the inventor needs more time for filing.
However, it can not be post-dated as explained below in the analysis. Another scenario might be when the deadline for filing PCT application i. The regulations pertaining to post dating of the patent applications are governed by the provisions mentioned in Sec 9 and Sec 17 of the Patents Act. The provisions of Sec 17 are subject to the provisions of Sec 9.
This means that the powers of the controller as mentioned in Sec 17 for post dating a patent application are restrained by the provisions of Sec 9 1 that a complete specification must be filed within 12 months from the date of filing of the provisional application.