Warning: fsockopen() [
function.fsockopen]: php_network_getaddresses: getaddrinfo failed: Name or service not known in
/wwwroot/gphone-android.com/wp-includes/class-snoopy.php on line
1142
Warning: fsockopen() [
function.fsockopen]: unable to connect to surl.cn:80 (php_network_getaddresses: getaddrinfo failed: Name or service not known) in
/wwwroot/gphone-android.com/wp-includes/class-snoopy.php on line
1142
India deposited its instrument of accession to the PCT and on 7th December 1998 thus became a member of the PCT, as the 98th Contracting State of PCT. Furthermore, nationals and residents of India are entitled to file international applications for patents under PCT at Receiving Office at Patent Office at Delhi.
Principal Objectives of the PCT
The principal objective of the PCT is to simplify and to render more effective and more economical-in the interests of the users of the patent system and the offices that have responsibility for administering it-the previously established means of applying in several countries for patent protection for inventions. Before the introduction of the PCT system, virtually the only means by which protection of an invention could be obtained in several countries was to file a separate application in each country; these applications, each being dealt within isolation, involved repetition of the work of the filing and examination in each country.
To achieve its objective, the PCT:
- Establishes an international system which enables the filing, with a single patent Office (the “Receiving Office”), of a single application (the “International Application”) in one language having effect in each of the countries which are party to the PCT which the applicant names (”designates”) in his application;
- Provides for the formal examination of the International Application by a single patent Office, the Receiving Office;
- Subjects each International Application to an international search which results in a report citing the relevant prior art (mainly published patent documents relating to previous inventions) which may have to be taken into account in deciding whether the invention is patentable; that report is made available first to the applicant and is later published;
- Provides for centralized international publication of International Applications with the related international search reports, as well as their communication to the designated Offices; and
- Provides the option of an international preliminary examination of the International Application, which gives to the Offices, that has to decide whether or not to grant a patent, and to the applicant, a report containing an opinion as to whether the claimed invention meets certain international criteria for patentability. The procedure described in the preceding paragraph, comparing it with the traditional procedure, is illustrated by two
timelines such as chapter I and chapter II of PCT. It is commonly called the “International Phase” to describe the first part of the patenting procedure, whereas one speaks of the “National Phase” to describe the last part of the patent granting procedure which, as explained in paragraph above, which is the task of the designated Offices, that is, the national Offices of, or Regional offices acting for the countries which have been designated in the International Application. (In PCT terminology, a reference to “national” Office, “national” phase and “national” fees, includes the reference to the procedure before a regional patent Office).
Under the PCT system, by the time the International Application reaches the national Office, it has already been searched by the International Searching Authority and possibly examined by an International Preliminary Examining Authority, thus providing the national patent Offices with the important benefit of reducing their work loads since they have the benefit of these international phase procedures and thus need not duplicate those efforts. Further objectives of the PCT are to facilitate and accelerate access by industries and other interested sectors to technical information related to inventions and to assist developing countries on gaining access to technology.
Functions of The Receiving Office
1. The first step is that the Receiving Office receives the International Application from the applicant. An application for the same invention has to be filed six weeks or necessary permission under section 39 should be taken before the filing of International Application.
2. The second step is that the Receiving Office checks the International Application to determine whether it meets the prescribed requirements as to form and content of International Applications. This check is of a formal nature only and does not go into the substance of the invention. It therefore extends only to a certain number of rather elementary requirements specified in the Treaty as forming part of that check.
3. i) The receiving Office shall accord as the international filing date the date of receipt of the international application, provided that that Office has found that in order in accordance with Article 11, at the time of receipt:
ii) (a) If the receiving Office finds that the international application did not, at the time of receipt, fulfill the requirements listed in paragraph (1), it shall, as provided in the Regulations, invite the applicant to file the required correction.
(b) If the applicant complies with the invitation, as provided in the Regulations, the receiving Office shall accord as the international filing date the date of receipt of the required correction.
4. Receiving Office checks certain formal and physical requirements (Article 14).
That check by the Receiving Office may show that the International Application does not meet certain requirements as to form and content and that the fees are not, or not fully, paid. In that case, the Receiving Office communicates with the applicant in order to give him an opportunity to correct any defect.
6. If the language of filing of the International Application is one acceptable by the Receiving Office but is not acceptable by the International Searching Authority that is to carry out the international search, the applicant is required to furnish, within one month from the filing date of the application, a translation into a language which is all of the following: (i) a language accepted by the International Searching Authority that is to carry out the international search;
(ii) a language of publication; and
(iii) a language accepted by the Receiving Office (unless the International Application is filed in a language of publication). In cases where the applicant fails to furnish, within the applicable time limit, a translation for the purposes of international search, the Receiving Office invites the applicant to furnish the missing translation, in certain cases subject to the payment of a late furnishing fee. A separate invitation procedure is provided for the case where the request does not comply with language requirements. Where the applicant does not furnish the missing translation within the time limit fixed in the invitation, the International application will, subject to certain safeguards for the applicant, be considered withdrawn and the Receiving Office will so declare.
7. Not all the requirements of the International Application are required to be examined by the Receiving Office. For instance, the Receiving Office does not deal with substantive questions such as whether the disclosure of the invention in the application is sufficient and whether the requirement of unity of invention is complied with. It also does not check all the many detailed physical requirements of the International Application. Those requirements are only checked to the extent that compliance with such requirements is necessary for the purpose of reasonably uniform international publication.
Typical examples of defects, which may be corrected without affecting the international filing date, are:
- Non-payment or partial payment of fees;
- Lack of signature of the request;
- Lack of a title of the invention;
- Lack of an abstract;
- Physical defects.
The third step in the procedure before the Receiving Office is that it must transmit the “record copy” of the International Application to the International Bureau and the “search copy” to the International Searching Authority. The Receiving Office keeps a third copy, the “home copy.” The transmittals do not take place if and as long as national prescriptions concerning national security apply. The Receiving Office will then declare that national security provisions prevent the International Application from being treated as such.
The following conditions should be fulfilled for according an international filing date:
The applicant should be a resident or national of the Contracting State for which the Receiving Office acts, and has consequently the right to file with that Receiving Office (note, however, that the International Application is to be transmitted to the International Bureau as Receiving Office under Rule 19.4(a)(i) if that condition is not fulfilled);
(ii) The International Application should be in the language, or one of the languages, accepted by the Receiving Office for the purpose of filing International Applications (note, however, that the International Application is to be transmitted to the International Bureau as Receiving Office under Rule 19.4(a)(ii) if that condition is not fulfilled);
(iii) The International Application should contain at least the following elements:
(a) an indication that it is intended to be an International Application,
(b) the designation of at least one Contracting State
(c) the name of the applicant in a form allowing the applicant’s identity to be established,
(d) a part which on the face of it appears to be a claim or claims.
(iv) If one of these requirements is only complied with after correction, the international filing date will be the date on which the correction was received. In other words, in these cases a defect, which is corrected later, affects the international filing date. If all such defects are not properly corrected, the application will not be treated as an International Application.
(v) For all the other cases, non-compliance with the formal requirements does not affect the international filing date. In other words, if the applicant corrects a defect in such cases, the international filing date remains unchanged. If the applicant does not correct, the defect properly, the International Application will, however, be considered withdrawn by the Receiving Office. Extension of the time limit fixed by the Receiving Office for the correction of defects under Article 14 may be requested.
Monitoring of time limits
Easy supervision and monitoring of only a few time limits and events is required by applicants, namely:
(i) Monitoring the receipt of the confirmation of receipt of the International Application by the Receiving Office;
(ii) Monitoring the time limits for payment of fees;
(iii) Checking the notification from the International Bureau confirming the receipt of the International Bureau confirming the receipt of the record copy (Form PCT/IB/301) for correctness of the designations indicated on the Form and if needed and confirm precautionary designations within 15 months from the priority date;]
(iv) Deciding, after receipt of the international search report, whether or not to file a demand for international preliminary examination (which must be filed prior to the expiration of 19 months from the priority date.
(v) Deciding, after receipt of the international search report, whether or not to file amended claims under Article 19, within the applicable time limit; This will usually be considered only if demand for international preliminary examination is not filed;
(vi) Monitoring the receipt, during the 19th month from the priority date, of the notice from the International Bureau (Form PCT/IB/308) that the publication of the International Application and its communication to the designated Offices (Article
20) has been effected;
(vii) entering the national phase before the expiration of 30/31 months from the priority date by paying the national fees and furnishing (if required) a translation of the International Application.
b) Priority
1. Only one certified copy is required of each priority of the application and to be furnished within 6 months from the filing date; no copies for each designated Office are needed. The copies for the designated Offices are prepared-at no additional cost to the applicant-by the International Bureau.
2. Transmittal of the priority document need not be monitored if a request for transmittal by the Receiving Office to the International Bureau of an application filed with that Receiving Office was made in the Request Form and the applicable fee for a priority document was paid to the Receiving Office.
c) Description
1. The description of the invention in the International Application must disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art.
2. The description first repeats the title of the invention. It then specifies the technical field to which the invention relates. It indicates the so-called “background art,” that is, the technical and, in particular, patent literature, pertaining to that technical field, constituting the “prior art” or “state of the art” or known technology for the newly filed application. It discloses the intention in a way, which allows the technical problem and its solution to be understood. It states the advantageous effects of the invention as compared with the known technology. It briefly describes the figures in the drawings. It sets forth the best mode contemplated by the applicant for carrying out the invention and any other mode he wants to include.
d) Sequence Listing: -
1. Section 806 of PCT allows a designated Office to require that a copy of a sequence listing part filed only on an electronic medium under new Section 801 be furnished, for the purposes of the national phase, on paper.
2. For applicants who do not wish to file the sequence listing part of their international applications under new Section 801, the current provisions will continue to apply, including the filing in written form only (under Rule 5.2) and the concurrent or subsequent furnishing, as provided under PCT Rule 13ter and Section 208, of the sequence listing parts in computer readable from but only for the purposes of international search and/or international preliminary examination. In such cases the current system for calculating the basic fee, on the basis of the total number of sheets of the international application including the sequence listing part, will continue to apply (see item 1(b) of the Schedule of Fees).
3. It is important to note that international application filed under new section 801 may only be filed with receiving Offices, which are prepared to accept them, and on such electronic media as specified by the receiving Offices (for further details pl. see PCT Applicant’s Guide).
e) Claims:
1. The claims must define the subject matter of the invention for which protection is sought. They must be clear and concise and fully supported by the description.
2. With respect to the structure and drafting of claims, the PCT requirements are largely similar to what is accepted in most patent Offices.
f) Drawings:
The drawings are only required where they are necessary for the understanding of the invention. This will be the case for an engineering type of invention. It will not be the case when an invention cannot be drawn, as is the case for a chemical product. Here again, the requirements are similar to those of most patent Offices.
g) Abstract:
1. The abstract is intended to serve the purpose of technical information. The Treaty says clearly that it cannot be taken into account for any other purpose. This means in particular that it cannot be used for the purpose of interpreting the scope of the protection sought.
2. The abstract consists of a concise summary of the disclosure of the invention as contained in the description, claims and drawings in preferably within 50 to 150 words. It must be drafted in a way, which allows the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use of the invention.
h ) Language of filing
1. The International Application must be filed in the language, or one of the languages, which the Receiving Office accepts for that purpose (Rule 12.1(a)). If the application is filed in any receiving office in India it has to be either in English or Hindi.
Neither the Treaty nor the Regulations enumerate the languages in which International Applications may be filed. Whether a given language can be used depends on the readiness of the Receiving Office to accept International Applications in that language. Each Receiving Office must, however, accept at least one language for the filing of International Applications which is both a language accepted by the International Searching Authority or, if applicable, by at least one International Searching Authority, competent for the international searching of International Applications filed with that Receiving Office and one of the languages of publication (that is, Chinese, English, French, German, Japanese, Spanish or Russian), so that applicants always have the option of filing the international search or international publication purposes; in other words, either words, either the International Application in its original language or the translation will be sufficient for the processing by the Receiving Office, for international search and for international publication.
2. If the language of filing of the International Application is the one acceptable by the Receiving Office but is not accepted by the International Searching Authority, the applicant is required to furnish, within one month from the date of receipt of the application, a translation into a language which is all of the following:
(i) a language accepted by the International Searching Authority that is to carry out the international search;
(ii) a language of publication; and
(iii) a language accepted by the Receiving Office (unless the International Application is filed in a language of publication) (Rule 12.3).
3. If the language of filing of the International Application is accepted by the Receiving Office and the International Searching Authority but is not a language of publication (at present, this is the case only where the International Application is filed in Dutch and certain Nordic languages), the International Application will be published in English, the translation into that language being prepared under the responsibility of the International Searching Authority which undertakes the search (see Rule 48.3).
4. The request must always be filed in a language that is accepted by the Receiving Office and which is also one of the seven languages of publication
The National Phase
1) The national phase follows the international phase. In the national Phase before processing and examination in the designated or elected Offices, the applicant must perform certain acts thereby effecting “entry into the national phase.” If the applicant does not enter the national phase, namely, if he does not perform these acts within the prescribed time limit, the International Application loses its effect in the designated or elected States concerned with the same consequences as the withdrawal of any national application in that State (Article 24).
2. For entry into the national phase before a designated or elected Office (if Preliminary examination is undertaken and countries elected), it is necessary that the national fee be paid to it and, where the International Application has not been filed or published in the official language, or one of the official languages of that Office, a translation into an official language be filed. The time limits for entry into the national phase are, in some Offices, even longer than 31 months.
3. The national fees to be paid are usually same as the fees required for the filing of a national or regional application. Some Offices, not in India however, levy lower national or regional filing, search or examination fees, or refund certain fees, on account of the existence of the international search report or where an international preliminary examination report has been established. This offsets, at least partly, the costs of filing an International Application.
4. Where the original drawings are of a good quality, the applicant is not required to file additional formal drawings with the Designated or Elected Offices, permitting substantial economies in some cases. It is therefore important to file drawings with the Receiving Office that fully comply with the format requirements of the Regulations under the PCT.
5. Where the priority of an earlier application is claimed and a certified copy of that application has been provided, it is not necessary to submit a certified copy of the priority document to each designated or elected Office. The International Bureau sends any required copies of the priority document to the Offices concerned.
Legal Remedies; Protection against Loss of Rights
Where, as a result of a mistake which was not timely corrected, an International Application is considered withdrawn, the applicant may request review of that decision by each of the designated Offices. In addition to requesting review, the applicant has the opportunity to submit at the same time, to each designated Office, a request for excuse of failure to comply with a time limit. The legal basis of, and the conditions for, such a request are to be found in the applicable national law or regional convention, which applies equally to International Applications. Where that law or convention provides for reinstatement, this can be requested. Where there is a possibility of requesting further processing of the application, this can also be done. Procedural safeguards are thus available in each designated State to PCT applicants in the same way, as they are to applicants for national or regional applications not made via the PCT.
KAVIRAJ SINGH PATENT ATTORNEY OF TRUSTMAN & CO, IPR LAW FIRM AT DELHI INDIA Trustman & Co a full service law firm for patent, trademark, pct application, real estate, debt collection, legal outsourcing, lpo, business, arbitration, corporate law firm
http://www.delhilaw.firm.in/articlenews/pctapplicationindia.htm
http://trustman.org/lawfirm/trademark_india.htm