U.S. Or India: Where To File For A Patent First?

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United States Patent and Trademark Office (USPTO) often is one of the favorite or lucrative destinations for the applicants for filing a patent application for various reasons, the prime reason being that usually the target as well as potential market of the invented product or process is U.S. Another major reason for interest in filing in U.S. is that U.S. patent laws permit broader spectrum of software patents compared to Indian Patent Law which says that software per se is not patentable till it has technical application. For all these reasons, at the time of filing for a patent, the biggest dilemma an inventor has is where to file for a patent first, in India or U.S.?

In this article, we will explore the advantages of filing in India first and consequences of filing in U.S. first if the inventor is a resident of India.

Filing in India first makes sense (U/S 39)

Before taking a decision on where to file first, it is essential to understand what does Indian Patent Law say about foreign filing. The issue is sensitive as well as critical and lack of expert legal advice on the same may have fatal consequences. Accordingly to Section 39 (Residents not to apply for patents outside India without prior permission) of the Patents Act 1970, a person who is resident in India shall not make application for grant of patent outside India without:

1. Either taking Foreign Filing Permission (FFP) from the Controller of patents. This permission is usually granted by the Controller within 21 days and is required not only for foreign filing but also for filing a PCT application; or

2. Filing for a patent for the same invention in India and waiting for 6 weeks. Who is ?Resident of India??

The term ?Resident of India? has not been defined in the Patents Act, 1970 but according to Income Tax Act, an individual can be termed as a 'Resident of India' if he stays for the prescribed period during a fiscal year i.e. 1st April to 31st March, either for:

1. 182 days or more; or

2. Has been in India in aggregate for 365 days or more in the previous four years.

Any person who does not satisfy these norms is termed as a 'Non-Resident'. A resident individual is considered to be 'ordinarily resident' in any fiscal year if he has been resident in India for nine out of the previous ten years and, in addition, has been in India for a total of 730 days or more in the previous seven years. Residents who do not satisfy these conditions are called individuals 'not ordinarily resident'.

Rational behind filing in India first

Main rational behind having Section 39 is to safeguard national defense and security. If the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permission for foreign filing without the prior consent of the Central Government. Such application may impose Secrecy Directions and the Controller may give direction for prohibiting or restricting the publication of such application if it appears to him that the invention in question falls in one of the classes notified to him by Central Government as relevant for defence purposes or the Controller himself considers it to be so. However, this section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.

Source: http://feedproxy.google.com/~r/sivcnews/~3/J6qg3Pyl_DE/US_Or_India_Where_To_File_For_A_Patent_First-nid-102252.html

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