With start-up fever rising in India, there is also rise in improper investments. In other words, investment without proposer due-delegacy can be referred as bad investment. Basically, start-up can be broadly divided into two categories which we seen in perspective of Intellectual Property are 1. Services oriented start-up and 2. Technology based start-up.
Innovative product can be protected under “Patent” and or “Design Registration”. Patent provides protection for the technology and “Design Registration” also referred as “Design Patent” for outer aesthetics. Under normal process 4-7 years are required for getting a grant for “Patent” and for getting Design registered/approved 03 months to 2year. Filing does not mean it is registered. After registration/grant, a certificate is issued and the status is accessible to all on ipindia.nic.in website only.
Most of the first time investors invest in a company, which has filed a patent application. But, filing of a patent application is the first step, which does not guarantee grant or protection or monopoly in the defined jurisdiction. Anyone can file anything with the patent office and still an application number will be issued. Which is a very normal process. There is no restriction on filing of a patent application, but there are criteria for grant of the patent application. Before filing or after filing the patent application a patentability search will also reveal the possibility of grant.
Normally, after filing a patent application, it’s published in the patent journal, giving an opportunity to any interested person/party to oppose the grant of the patent. In most of the case opposition (pre-grant oppositions) are not filed. Still the patent application is examined to check whether the invention that is applied for patent is patentable or not.
Examiners do a thorough search to find relevant citations for negating grant of the patent application based on the write-up submitted to the patent office and then try to negate the patent based on inventive step with combination of documents. This sent as an examination report. Thereafter, a hearing may be called for resolving any pending queries and thereafter the patent application is granted. After grant, one can file patent infringement cases and claim retrospective damages if any.
Even if the patent is granted there may be a possibility, that the invention (a portion) may be infringing a live patent. Which may cause major financial problem. This search is generally referred as Freedom to Operate (FTO) search in general done by patent professionals.
At last valuation of the patent should be done before doing any transaction.
Thereafter, it would be good to go ahead with any contracts and financial transactions.
Therefore, before investing into any patent application, it would be recommended to check the quality of the draft, patentability, infringement, and then decided to make the investment. Additionally, valuation will give approximate estimation of expected profits.
Suneet Sabale – Founder & CEO Brainiac IP Solutions,
Mechanical Engineer, Patent Agent, Visiting Faculty @ RGIIPM and Savitri Bai Phule Pune University.
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