India: Draft Patent Rules Published For Public Comments

Last Updated: 3 November 2015
Article by Agram Legal Consultants

The Ministry of Commerce and Industry, Department of Industrial Policy and Promotion ("DIPP") issued a notification on October 26, 2015 publishing the draft Patents (Amendment) Rules, 2015 ("Draft Rules") to amend the Patent Rules, 2003 ("Patent Rules"). The DIPP has called upon the stakeholders to provide their objections and/or suggestions within a period of 30 (thirty) days from the date of the notification.

Salient features of the Draft Rules are summarised below:

1. To ease communication between the patent officials and the patentee or any other person, concerned with proceeding under the Patents Act, 1970 ("Patents Act"), a patentee or any other person will have to additionally submit to the Controller, their e-mail address and mobile phone numbers;

2. If during the online filing process, fees have been inadvertently paid for the same proceedings more than once, the additional fees so paid will be refunded. However, amounts paid in excess of requisite fees will not be refunded;

3. Where inventions are explained through drawing(s), the description, claims and features illustrated in the drawing(s), will have to be accompanied by reference signs in parentheses.

4. Instead of mentioning the technical problem that the invention resolves, specifications accompanying patent application, that contain abstracts providing technical information, will now have to indicate the technical advancement brought about by the invention, excluding speculative use(s);

5. References to a biological material, that form part of the specifications of a patent application, will have to be made on or before the request for an early publication of the patent application. Inventions using biological material from India will have to be declared in Form 1 under the Draft Rules;

6. For ease of reference, amendments made tocomplete specifications/drawings will have to be retyped and submitted, to form a continuous document, along with marked copies identifying the amendments carried out. Consequently, previous specifications/drawings will be deemed to have been superseded/canceled;

7. It is clarified that an acceptable patent application, that "corresponds to an international application" filed under the Patent Cooperation Treaty ("Treaty"), may include amendments that have been filed with the International Bureau at the World Intellectual Property Organisation or any amendment(s) made before the international preliminary examination report is established under the Treaty;

8. Request for the examination of a patent application can be withdrawn before the application is referred to an examiner by the controller;

9. Timelines in relation to the examination of patent applications have been reduced. An applicant may request for expediting the examination of applications, stating such grounds mentioned in the Draft Rules, that may include the applicant undertaking, that the manufacture of the invention will commence within 2 (two) years from the grant of the patent;

10. The Controller will be given a period of 2 (two) years to dispose of examination applications that have been filed before the commencement of the Draft Rules;

11. Hearings in relation to the patent application, can be held through video-conferencing or other communication devices. Further, the Controller will have a time of 1 (one) month to determine the grant of patent based on representations made by an applicant against the objections relating to the patent application;

12. Rules for the disqualifications and removal of a scientific advisor have been prescribed/revised;

13. Rules relating to patent agents have been revised. Further, patent agents that cease to Indian citizen may no longer continue operating as patent agents;

14. Adjournment of a hearing may be sought by patent applicants or parties to a proceedings only for reasonable cause provided to the refund of fees, request for extension of time and amendment of patent application/complete specifications. Controller;

15. Certified copies of any entry in patent register maintained by Controller must be made available to an applicant within a week's time, if the request is made along with a fee specified in the prescribed schedule;

16. Previous schedules and forms have been substituted/revised and amended wherein details relating to inter alia application fees, patent applicants or parties to a proceedings only for reasonable cause provided to the refund of fees, request for extension of time and amendment of patent application/complete specifications.

The Draft Rules implement some important changes to the Patent Rules in relation to timelines to be maintained by the patent authorities and the patentee. In regards to patent application, time is always of the essence and thus the Draft Rules look to minimise the timelines between the time of application and the approval of patent. Important clarifications relating to international patent applications are also a welcomed inclusion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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