Author: Shashank Singh Rathor, II year of B.A.,LL.B. from Ideal Institute of Management & Technology and School of Law, Affiliated to G.G.S.I.P.U. , Delhi
As India is on its way to becoming one of the innovation hubs in Asia, patent filing is getting momentum in the country. The distinct initiatives by the Indian government to encourage innovators and startups are also playing a key role in the increasing rate of filing patents in the nation. In 2020 itself 24 thousand industrial patents were granted in India. It clearly shows that the innovators and startups are now pretty much keen on getting their innovation patented, safeguarding them from any kind of infringement and potential market competitors, and further enjoying monopolistic and exclusive business gains. Further, it has led to an elevation in awareness of patent filing.
It could not be neglected that filing a patent is an extensive as well as an expensive process in India. Generally, while filling a patent, just the statutory filing fees (official fee) and professional fees are disclosed. However, after the due process of filing the patent, there are certain other fees that are to be paid to the Indian Patent Office (IPO), and after paying this much if I will say that this amount is not something that is only to be paid for filing a patent, what will be your reaction? This article will answer, whether the inventor should approach professional help for filing the patent or not.
Who can apply for a patent in India
Section 6 of The Patent Act, 1970 talks about, who is entitled to make an application for a patent? As per the provision provided under Section 6 of the act, anyone who is the first and true inventor of the invention can apply for the patent of his/her invention. However, as per the provision in Section 6, such a right of filing the application can be transferred to the assignee of the first and true inventor of the invention. In such circumstances, the application has to be accompanied by proof of right to make an application with the declaration that the person who is claiming is the first and true inventor of the invention. Last but not least, the patent application can also be filed by the legal representative of any deceased person who was entitled to such a patent before his death.
Why you might apply for a patent without an attorney
In India filling a patent with the help of a professional or attorney will cost you approximately INR 50,000-INR 70,000 which will account for 75 to 95% of the total fee. Probably, you might have listened about the term, “prosecute” in other contexts, when it comes to patents; the prosecution is only a process of guiding a patent application through the Indian Patent Office (IPO). Of course, it is not mandatory to hire a professional or a patent law firm for the filling process, Inventors can undertake the whole patent process by themselves and it must not be neglected that without proper corporate or institutional funding, it’s barely possible for many new inventors, students, and individuals to hire a legal representative for themselves.
Fortunately in India, there is no rule that it’s mandatory to involve a patent attorney for filing the patent application. If the inventor is capable of filling the application on his own and has that much time and willingness to learn the process, then he may file his patent application on his own.
While deciding whether or not to work with a patent lawyer, the inventor should always consider the following points :
Whether you have that much time to conduct your research and follow through with the application process.
The level of complexity of your invention. The more complicated and advanced your invention and its technology are, the more likely you will need an attorney.
What are the possibilities that others will challenge your invention? If your invention is pretty much similar to the other’s invention or it is in a competitive field, then in such a situation, you may need an attorney to draft a really strong patent that will stand up to all the legal challenges.
Some of the reasons, which might influence the inventors to proceed with the patenting process on their own
Now, moving on to the pinpoint of the whole issue, what are the possible reasons that make the inventors proceed with the patenting process on their own? First thing first, the inventor should have to draft the strong patent application before filing it, and if he doesn’t have any idea about drafting the patent application then legal assistance comes into the picture which can surely charge a hefty amount of money for drafting. In India, filing the patent might cost the inventor in lacs or it also depends on the selection of the Patent Consultant or law firm for his work. If someone goes to the law firm, they charge so much that most individuals drop the idea, and on the other hand, if someone goes to the less experienced patent agent who lacks the skills of drafting a good patent application then the amount charged by them might be very little but cannot be trusted for reliable work.
Some of the probable causes are mentioned below, which might influence the inventors to proceed with the patenting process on their own:
It can also be possible that the inventor might have thought that, since he is the inventor, he is the best person to describe his invention and that’s why professional help is not required.
An inventor who has previously prepared public disclosures and has some experience of preparing it might feel that preparing a patent specification is a similar task, that he can perform on his own.
Most probably the inventor might be having thought, that filing for a patent is just an administrative process and can be done by filling up and submitting the form.
An inventor may save thousands of rupees if he files his application without an attorney.
Moreover, he may qualify for free or low-cost resources to assist with the patent application process.
The inventor will have to do exhaustive research, including prior art searches, before filing.
It will mostly take hundreds of hours of your own time for filing a patent application without legal help.
You will be required to stay on top of and meet the many important requirements and deadlines of the application process.
Further, drafting a strong application requires excellent writing skills.
Can you get a strong patent without legal assistance
A stronger patent can provide you with a stronger claim on your invention, so it must be drafted with utmost care. A stronger patent always presents well-written claims, displays usefulness, distinguishes a new invention from the prior art, and foremost thing can anticipate legal challenges.
Further, the well-grounded claims are what truly strengthen a patent. This is often the most significant task for an attorney, as the claims elucidate your invention in a way that will be used to determine if someone is infringing your patent.
While drafting the patent, the most complicated part is to predict the legal challenges on your own; this is such a sensitive part of the filing process that even patent agents cannot provide the relevant information, as this would be considered legal advice.
To save the cost, you may try to identify vulnerabilities on your own. However, the amount of risk will always revolve around the nature of your invention. What type of invention is it? Is it innovative enough in the extremely competitive field? Are there similar inventions in the market?
These are some of the few challenges the inventor might face if he will try to draft it on his own but if he is really keen to do that and there isn’t any option left to him. Then, a thorough patent search can assist him in finding out the other patent holders who might challenge him.
Patents can give great value and increased returns to inventors and companies on the investment made in evolving new technology. Patenting process needs to be done with a well-planned strategy that aligns business interests to implement the technology with a wide range of options in the search for how, where, and when to patent. It must be understood that a patent specification is the only document that protects the invention, and hence, it should be drafted with the utmost care and by the best person for this job. It is highly recommended that the inventors should not try to do this job if they are not qualified for doing this because ultimately it can affect their patent rights. They may try to do so if they have certain skills that are required for filing patents and are willing to do at their own risk.
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