In the field of intellectual property rights, patents are important rights which secure the new product or process made by a person which is novel, non-obvious and capable of industrial application. Publication of a patent application shows that such application for an invention has been filed by a person who is the owner of that product or process. From the date of the publication, the person who has applied becomes eligible to claim the penalty money from the person who has infringed his invention although he cannot file the infringement suit before the grant of the patent, he can claim that money from the day when his patent application gets published in the official gadget.
In this article, we are going to discuss the publication of the patent application and how you can publish your application in a short period by just filing a simple form with a prescribed fee.
What is a patent?
A patent is a right given for a new product or invention. the government of India gives in the territory of India to a person who has invented a new product or process which is unique from any other existing product or process within India or elsewhere in the world. To learn more about patents, you can check our previous article on what is a patent. You can also read about the types of patent applications in India.
The process to file a patent application in India
To keep your invention secure with the help of the Indian patent office, a person should file a patent application for his invention so that no one can use his invention without his prior consent. There are lots of benefits to filing a patent application.
In the process of filing a patent application in India, there are lots of steps including:
- Prior art search
- Filing of patent application
- Publication of a patent application
- Examination of a patent application
- Grant of patent
In our previous article on the process of filing a patent application in India, we discussed each and every step of the patent filing procedure. You can read the full article for more knowledge.
Publication of a patent application
Once you have filed a patent application, the patent office will secure your invention and will not disclose it for the next 18 months from the date of filing.
Section 11A of the Patents Act of 1970 deals with the publication of a patent application. As per this section, the patent office shall disclose your invention to the public only after the expiry of 18 months from the date of applying your invention.
Within these 18-month periods, the person can withdraw his patent application before the expiry of 15 months from the date of filing. if the Inventor of the application needs to make some changes in his patent application, then he can do so within this period.
Publication is an automatic process
As per the Patents Act of 1970, the publication of a patent application is an automatic process. It means, that once you have filed your patent application by filing the complete specification within 12 months or you have filed the complete specification at the time of filing the patent application, then, after the expiry of 18 months from the date of filing, the patent office will automatically publish your patent application in the official gadget.
For the automated process, you don’t need to do anything and the Inventor don’t need to pay any kind of fees.
Early publication of a patent application
Now, as we know there is an automatic process for the publication of a patent application, but sometimes the person may need to publish his invention before the expiry of 18 months or as soon as possible. In that case, the person can take some extra steps to publish his invention early with the help of early publication of a patent application by doing some formalities described in the act.
Process for early publication
If any Inventor wants to publish his invention without waiting 18 months, then he can directly file the form for early publication of a patent application with prescribed fees. By filing this form with prescribed fees, the patent office shall publish his invention within one month from the date of filing this form.
Form and fee
The applicant has to file a Form 9 with a prescribed fee which is ₹2500 for a natural person. There is a format given on the official website of the patent office. The applicant just needs to fill out this form and submit it online in the portal with the prescribed fees.
Link to website:
https://ipronline.ipindia.gov.in/epatentfiling/goForLogin/doLogin
Benefits of early publication
There are many benefits of an early publication. Let us discuss these benefits.
Early examination
If you think that your application should be granted as soon as possible, then it will be beneficial for you to go for early publication. Suppose you have done early publication, now you can go for examination of a patent application or you can go for expedited examination of a patent application because if anyone wants to examine the patent application, then the patent application must be published. It will help you to grant your patent as soon as possible
To stop your competitors
Let us suppose that any person has started selling the product which you have filed as your invention. After the publication of a patent application, that person has to stop selling that product in the market because now his act will be considered as an infringement over your invention and once your patent is granted over that invention, you have the right to claim the losses from the date on which your invention was published.
Rights over the patent
After the publication of the patent application, you can now launch your product in the market and start selling your product as a right given by the act.
Attracting investors
After the publication of a patent application, you can start attracting investors towards your invention by advertising this and selling the products to them because now it becomes official that this product belongs to you only.
Disadvantages of publication
There are also some disadvantages of a publication of a patent application which should be kept in mind. These disadvantages are.
Hard to make changes to the application
Although you can still have the right to make changes in your patent application before the grant of a patent application, once your application gets published, you cannot make hard changes like changes in the claims which can change the whole content of your application.
Also, if you need to change something in your patent application, you need to file form 13 with prescribed fees and these changes need to be published in the official gadgets if the controller thinks so.
Risk of pre-grant opposition
After publishing a patent application, any person can go for pre-grant opposition. It gives them more time to file the opposition against your application before the grant of your application.
Conclusion
In conclusion, we can say that a publication of a patent application provides or enables the rights of an application holder over his invention so that he can start working on his invention for its commercialisation use. it is also suggested that a person publish his invention with the help of filing form 9 if he wants to grant his application early. If you have any suggestions or queries related to this article, you can comment below.