Securing a patent bars other people from making, using, or selling your intellectual property without your consent. Patents can be awarded to a process, an apparatus, a new use of an existing material, or an improvement on an existing technology, as long as it can be demonstrated to be new, useful, and not obvious to the person skilled in the field as per the Indian Patent law.
However, filing a patent can be a complex, time-taking legal process. The Indian Patent Office, along with the patent attorney and agents, can help to navigate the legal requirements to determine whether your invention is patentable. After filing a patent application, it can take a significant amount of time for the patent to be granted or denied by the Indian Patent Office.
Most of the theoretical models of Research and Development (R&D) assume that only a successful innovator will patent their invention but in practice this is not the case. Researchers/innovators often find it preferable to publish their inventions or the research paper and exclude the possibility of patenting even without actually going to the effort of obtaining a patent.
Why researchers prefer Publication over Patent?
There are several reasons due to which Indian researchers prefer article publication over patent.
- It can be a lack of awareness about the procedure of patent. Generally, publishing a research paper is emphasized upon in most Indian universities and research institutes as research publication gives more visibility to the researcher among academic fraternity. The patent on the other hand is a time-consuming process as compared to a publication.
- In India the patent right is not a big enough carrot to lure the researcher into filing a patent application. The reasons may be that the research subject has no commercial value or maybe the cost to commercialize the technology is too big a hurdle for the researcher to scale or may be as per them the Patents Act in India provides too little protection for patents.
- The economic costs (legal fees etc.) of going through the act of obtaining a patent, may, for small innovations, exceed the actual benefits of getting a patent.
- The university or research institution where the researchers work do not have licensing department or IP cell to recoup the value of IP rights for the new inventions or the research work. A researcher needs professional help when deciding whether to file a patent application for his/her new discoveries. And, even if the researcher is awarded a patent, he/ she may have trouble selling the patent right.
- Since no extra incentive is provided for a patent application as compared to a published paper by the academic institute, most researchers choose to publish a paper.
- Writing a patent is different from writing a paper, also paper is relatively quicker to publish and easier to write (wherein claims set is not required).
However, a patent followed by a good publication is a good idea wherever it is applicable, as the researcher may get royalty for their work if they find a market for its use and peer recognition is an added benefit.
But the most important thing is, before starting research one should decide first whether one is looking for good publication or looking to patent because both processes are different. For procuring a good publication the researcher requires a good theoretical concept but for securing a patent the researcher needs to show novelty, inventive step, and utility too. For patent one needs to find out current public demand along with its IP valuation.
GOVERNMENT POLICIES SUPPORTING FILING OF PATENT APPLICATIONS
The Government of India amended the Patent Act by introducing different policies that give incentives to academic institutions to protect their inventions under patent law and to encourage innovation.
According to the notification "Draft Amendments in the Patent Rules"1 released in Feb 2021, the central government proposes to provide benefits to eligible educational institutions for promoting patent filing by such institutes and has accordingly proposed changes to the Rules 2, 7, 24C and Fee Schedule of the Indian Patent Rules, 2003. Below are the key points:
- REDUCTION IN OFFICIAL FEE FOR PATENT APPLICATIONS IN
The official fee for the 'eligible' educational institute to be reduced by 1/5th of the current official fee and to be made equal to that payable by a natural person/start-up/small entity2. As per the Act, an 'eligible educational institution' means an institution established by a Central, Provincial or State Act, which is owned or controlled by the government, and is wholly or substantially financed by the government.
- For claiming the above benefit of fee reduction for the Eligible Educational Institution every document for which a fee has been specified by the Indian Patent Office has to be accompanied by Form 28.
- Amendment in the second proviso of the subrule( 1) and sub-rule(3) of Rule 7 has been proposed accordingly that mandates filing of Form 28 along-with any document accompanied with fee; and payment of difference in fee when entity of the applicant changes from 'eligible educational institute' to a 'large entity'.
- EXPEDITED EXAMINATION (Rule 24C)
According to the proposed amendments, a new clause (k) has been added to Rule 24C(1) of the Patent Rules, 2003.
- As per the new clause, the 'Eligible Educational Institution' will also be eligible for expedited examination request and suitable changes have been suggested in Form 18A and Form 28 for the Indian and foreign applicants satisfying the eligibility criteria of an 'eligible educational institution'.
- This brings eligible educational institutions and researchers in such institutes at par with startups by allowing them to request for expedited examination and get their applications granted within 6-12 months of filing the application at IPO. Presently, patent applications filed by educational institutions take around 3-5 years to get granted.
The scheme for facilitating Intellectual Property Protection (SIPP) launched in 2016 has now been extended up to March 20233. It facilitates start-ups in filing and processing of their applications for patents, designs and trademarks, wherein they just have to pay the statutory fees and the professional fee is borne by the office of CGPDTM as per provisions under SIPP scheme. They can also avail the special facility of expedited examination of their patent applications.
The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India, and World Intellectual Property Organization (WIPO) have signed an agreement to establish Technology and Innovation Support Centres (TISC) in India. The cell for IPR Promotion and Management (CIPAM) has been given the responsibility of identifying the potential host institutes and support them in forming TISC to further support budding startups and researchers.
Below are the ten TISC that have been formed in the country in association with the mentioned host institutes4:
- PCSCT Punjab State Council for Science & Technology, Punjab
- Anna University, Chennai
- Gujarat Council of Science and Technology, Gujarat
- National Research Development Corporation, Andhra Pradesh
- Kerala State Council for Science, Technology and Environment, Kerala
- Patent Information Centre, Rajasthan State Council for Science, Technology, Rajasthan
- Karnataka State Council for Science & Technology, Karnataka
- International Crops Research Institute for the Semi-Arid Tropics, Telangana
- Central Tool Room and Training Centre, Odisha
- Jammu & Kashmir Entrepreneurship Development Institute (JKEDI)
Such reduction in filing fees for natural person, small entities, start-ups and academic institutes will help students to file patent applications without any inconvenience. The objective of the aforesaid policies is to stimulate a dynamic, vibrant and balanced Intellectual Property Rights (IPRs) system in India to foster creativity and innovation, thereby promoting entrepreneurship and enhancing social, economic and cultural development.
There is a need to increase the awareness regarding the importance of patents and the knowledge regarding the process of filing of patent application in India. Patent is much more valuable for a researcher and it is a well-established fact, but Indian researchers seem not to value it much at present. Japanese articles and research papers are often accompanied with a pre-filed patent application.
There is a need of greater awareness of IPR and high growth in the number of patents being filed by Indian universities. If India is to become a knowledge-based developed economy and society in the coming decades, the trend of a greater number of patent filings has to permeate to all the universities of India and not just remain in the hands of the top institutions. Innovation has to be at the forefront of this process.
Although publication has certain advantages, but the patent can be more useful as Patent = good publication + IP. Patent gives an authority to sell the product whereas paper gives an idea of the work to others to do further research. A good patented product can be commercialized and gives value over and above a paper. Research paper is a discussion over the research work done. However, patent is the first step towards commercialized production of work. Patent, therefore, has more worth than Publication.
1. Draft Patents (Amendment) Rules, 2021 published in Gazette of India on 09/02/2021. Available at: https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Draft_Amendment_Rules__2021_Published_in_Gazette_of_India.pdf
2. Patents (2nd Amendment) Rules, 2020. Available at: https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Patents_2nd_Amendment_Rules_2020.pdf
3. SIPP. Available at: https://dipp.gov.in/sipp
4. TISC Network in India. Available at: http://cipam.gov.in/index.php/tisc/
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