"Gateway to Innovators from India and Europe using IPRs"

Wednesday, 22 November 2017 10:07

International Route

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Patent cooperation treaty

The Patent Cooperation Treaty (PCT) is an international treaty with more than 145 Contracting States. It is administered by the World Intellectual Property Organization (WIPO). Indian citizens can file a PCT application within 12 months from the priority date at receiving offices in India, i.e. Delhi, Kolkata, Mumbai and Chennai, or directly with the International Bureau of WIPO. Here, it may be noted that if the international filing is within 6 weeks from the date of filing in India, such filing shall be made after taking permission u/s 39 from the Indian Patent Office.

After the PCT application is filed, the applicant gets an International Search Report (ISR) and a written opinion on the patentability of the subject matter. On receipt of the International Search Report, the applicant may amend the Claims (under Article 19 of PCT) in light of the International Search Report with effect in all designated States, within two months from the date of transmittal of the international search report to the International Bureau and to the applicant by the International Searching Authority, or 16 months from the priority date, whichever time limit expires later. However, any amendment made under Article 19 which is received by the International Bureau after the expiration of the applicable time limit is considered to have been received by the Bureau on the last day of the time limit if it reaches before the technical preparations for international publication have been completed.

The applicant may also file a demand for an International Preliminary Examination. Thereafter the applicant may decide to enter into the national phase.

In PCT mode of filing, national route follows the international route; hence it is necessary for an applicant to file a national phase application in each designated country where protection is required for within the time prescribed under PCT i.e. within 30 or 31 months from the priority date. Indian Patent Law provides a maximum time limit of 31 months from the priority date. Some countries allow extension of such time limit on payment of additional fee.

For more information please visit: http://ipindia.gov.in/writereaddata/images/pdf/pct-filing.pdf

A diagram showing the entire timeline of the PCT process is outlined below:

PCT Timeline

Paris Convention

There are 177 countries (members) are signatories to the Paris Convention as of now. India is also a signatory to this convention. Under this convention, Indian citizens can file in member countries within 12 months from date of filing at IPO (priority date). Similarly, India also allows filing of new patent applications by member countries within 12 months from the priority date of that country. It is then followed by normal filing procedure at IPO.

Direct Foreign Filing

For Indian citizens who are not willing to file patent application in India and want to file directly a foreign patent application (PCT application or in other countries) it is mandatory to take permission for such filing from the Controller at IPO under section 39 (Foreign filing License). If such permission is sought along with the application there is a probability that the permission may be deferred and the application may be referred to DRDO / Department of Atomic Energy for their directions.

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