A patent is a statutory right granted to the inventor or applicant for his invention by the Patent office for a maximum of 20 years so that no person can make, sell or licenses the product or process without the prior permission of the inventor. The Start-up means an entity, incorporated or registered in India which is not older than five years and whose annual turnover does not exceed INR 25 crore in any preceding financial year. The main idea to develop a Start-up is to work towards innovation, development, deployment or commercialization of new products, processes or services driven by technology or intellectual property.
Mistakes that should be avoided :
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To File Poorly Drafted Patent Applications :
When a Patent application is filed for the first time in patent office, and if it is poorly written then it might lead to the preliminary scrutiny and objections and further examination as it has not followed the best standards. The more objections will come, the more time it will consume. The Focus should be on drafting the strongest most valuable patent claims.
Examples are like, Markush claims in Pharmaceutical products and processes which include chemistry where you can claim n number of molecules by having excellent drafting skills. The claims used in the structure, material, like “means plus function” which are having certain limitations, as they are interpreted narrowly by district and CAFC courts and often create costly litigation issues like infringement which is not useful for start-ups.
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Lingering to File Patent Applications :
To wait for a longer period to file a patent application is risky business for the start-ups. If any other person knows about your idea, then he will get a filing date priority date first ahead of you, and you will be just a mere spectator. Filing a patent is an easy task nowadays as e-filing is available which ease the task of attorney and give a momentum to start-up.
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No Stolen IP :
Start-ups who are ready to file a patent application must consider that there is not stolen IP in the present invention which they are about to file in the patent office. If stolen IP is there, then different types of actions can be brought against and which are not good.
These are:
- Infringement suits
- Litigations in Courts
The stolen IP should not be there while filing a patent application as a competitor; an opponent might want to bring suits against you.
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Technology is time sensitive :
In the 21st century, an inventor or applicant came within a product or process, then they seek protection so to avoid unauthorized use. In the current era, the existing technology is very vulnerable to future technology. The moment a new feature came in mobile, other companies tries to introduce that in their product also through licenses or technology transfer. Technology is time sensitive as if an inventor is not able to secure its rights in due course; then another person will file the application, and the patent will be granted to other people. If an inventor who opened a start-up than a proper a time frame must be prepared so that to avoid any future conflict. As a start-up, no one wants to have infringement cases or other legal issues with anyone as it costs hefty.
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Understanding technology/invention :
Before filing a patent, the invention or idea or utility behind the invention must be understood. Few questions must be answered before filing a patent by start-ups:
- What is the use of technology in the current or futuristic scenario?
- What is the existing technology or prior art which can affect the invention?
A proper study with reports, portfolio and landscape analysis of patent applications must be done with skilfully. It can give insights about the existing technology which start-ups might want to get patented.
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Not following best practices :
In every industry, best practices are there to do work efficiently. Some follow industry standard, standard operating procedures (SoP) or international standards to meet certain criteria so you should not be left behind in this competitive world. In every country best practices like how to draft a Patent application or how to conduct patent search issued by the patent office.
The best practices to be followed are:
- To know the forms needs to be filed for patent application at Patent Office.
- The page layout, margins, and font are to be considered as best practice when it comes to file a patent application
- The description of the application must follow:
- Title of Invention or Title
- Technical Field or Field
- Background Art or Background
- Summary of Invention
All in all, whatever is the requirement of the Patent Office or any other office like certificates to be required or furnished from office like Defence, biodiversity board should follow the criteria so avoid any further delay.
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To File Poorly Drafted Patent Applications :
When a Patent application is filed for the first time in patent office, and if it is poorly written then it might lead to the preliminary scrutiny and objections and further examination as it has not followed the best standards. The more objections will come, the more time it will consume. The Focus should be on drafting the strongest most valuable patent claims.
Examples are like, Markush claims in Pharmaceutical products and processes which include chemistry where you can claim n number of molecules by having excellent drafting skills. The claims used in the structure, material, like “means plus function” which are having certain limitations, as they are interpreted narrowly by district and CAFC courts and often create costly litigation issues like infringement which is not useful for start-ups.
-
Lingering to File Patent Applications :
To wait for a longer period to file a patent application is risky business for the start-ups. If any other person knows about your idea, then he will get a filing date priority date first ahead of you, and you will be just a mere spectator. Filing a patent is an easy task nowadays as e-filing is available which ease the task of attorney and give a momentum to start-up.
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Neglecting Prior Art :
The prior art of technology must not be a scene to miss when filing for a patent. As the start-up, it must be taken into acknowledging that research reports of the prior art with portfolio and landscape analysis plays a significant role in the getting a patent. Neglecting a prior art means more examination, more oppositions from other competitors and more infringements and if by chance a patent is granted, then post-grant oppositions. This all will cost a lot with time, and at the end, you will get nothing.
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Failing to Form an IP Strategy and Plan :
IP strategy and plan are an important part, as a good strategy will define the progress of company as well as form an efficient and suitable plan for future terms. Strategy and plan, both are different from each other as a plan is systematic in nature i.e. step by step what needs to be done whereas in strategy sees the, seen and unforeseen factors which might affect the filing of the patent. Things which can be considered as a part of the strategy and plan to file a patent by start-ups should be:
- To see what the competitors are doing.
- Always keep an eye on the latest market scenario.
- To keep yourself updated about the changing legislations in different jurisdictions.
- The strategy should be developed to see hoe fees can be reduced for governmental as well as to the legal department.
Above are the mistakes that should be avoided while filing a patent as it may unnecessarily lead to the tug of war between two competitors and sometime the mistakes might lead to the courts and as result pecuniary compensation needs to be paid.
