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A Wholesome IPR Scheme For Start-Ups And Small Enterprise

Gopi Trivedi & Anay Amin
20 Feb 2021 4:12 AM GMT
A Wholesome IPR Scheme For Start-Ups And Small Enterprise
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We all have often heard that startups and small enterprises are the very life blood of the country's economy and they are also the key contributors to a country's innovation and technology index. To aid innovation and technology, the Government of India has come up with an all-inclusive patent scheme specially for start-ups and small enterprises. We shall highlight a few key points that might be beneficial to start-ups and small enterprises and can help them to safeguard their innovations and inventions.

  1. Legal Aid: For facilitating filing of patents in India, the Government of India under Startup India Action Plans has proposed Start-Ups Intellectual Property Protection (SIPP), which is aimed at making IP Protection strategy imperative for Startups in India by promoting awareness and adoption of Intellectual Property Rights (Patents, Trademarks, Designs) and also provide startups with access to IP related Legal Services and Resources by way of IP Facilitators. IP Facilitators are empaneled by the Controller General of Patent, Trademark and Design (CGPDTM) and eligibility criteria includes Registered Indian Patent Agents, Trademark Agents and Advocates entitled to practice law under The Advocates Act, 1961. In addition, government departments/ organizations/ agencies like TIFAC, NRDC, BIRAC, DEITY, DSIR etc. can also act as IP Facilitators.
  2. Digitization: the IP offices in India have been significantly digitalized, which has brought in key advantages such as transparency, speedy and efficient disposal, virtual hearing, seamless working to name a few. Through these, all stakeholders including startups have been significantly benefited.
  3. Introduction of National IP Policy and Amendments to the Patent Policy & Act: In the recent years, the Government of India has striven hard to bring substantial changes in the IP ecosystem. Starting with rolling out National Intellectual Property Rights policy to establishing a Cell for IPR Promotion and Management (CIPAM) to work towards accomplishing IP policy objectives while promoting innovations in the startup ecosystem. The startup was introduced as one of the eligible applicants with the lowest official fees structure along with expediated examination facility. These have boosted startup ecosystem significantly. There is a remarkable increase in filing and disposal of patent application filed by startups from India and those from other countries in coming years. The further amendments are regarding bringing harmony between both National as well as International Filings. Being compliant with international treaties, it allows the submission of priority documents through Digital Library Access and the submission of English translation for the priority documents is now in accordance with the regulations under the Patent Co Operation Treaty. Further, the amendments regarding the working of patent on Form 27 simplifies the filing procedure allowing submission of single form 27 in case of multiple related patents. Secondly, by coinciding the submission dates of Form 27 with the financial year end, patentees and licensees shall be more at ease. With the other set of amendments, the Official fees for filing and prosecuting of Indian Patent Applications applicable to the applicants qualifying under small entities have been reduced and made at par with those applicable to the natural person/ startups. There is no need to pay up the balance official fees, in case the small entity ceases to be the small entity after filing of the patent application. Request for expedited examination filed by a small entity shall not be questioned merely on the ground that it ceases to be a small entity due to crossing the financial threshold limit as notified by the competent authority. These amendments will hopefully encourage small entities to seek patent protection for their innovations, notably contributing in patent filing trends. It equally applies to Indian as well as foreign applicants qualifying as small entity. So, when a startup eventually gets converted into Small entity, it can still avail all the above benefits. These amendments shall most certainly boost filing of patent applications and retaining them in applicants from small entity as well startups.

It is to be noted that with various amendments and changes in the system, there are still a few aspects that need solutions, the following two crucial issues need addressing:

  1. Backlog of Cases: With the concrete and ground level measures taken up by the government in fostering the IP ecosystem, a substantial increase has been noted in the patent filings and prosecution. Also, the backlog of prosecuting the patent applications in patent office which used to be a great concern is now being eventually on track with online system in force. Yet more efforts shall definitely accelerate in clearing this backlog. There is also a significant increase in filing of patent oppositions by various stakeholders. This has raised a challenge of disposal of these patent oppositions within reasonable time frame. There is a huge backlog to hear and dispose the IP legal matters before various courts. These courts should hear and dispose them on fast track basis. The appropriate enforcing facilities must be ensured to IP stakeholders. There has been a continuous request and suggestion of deputing IP courts which should be brought to reality.
  2. Awareness amongst start-ups: There is still a need of awareness among the various stakeholders including startups for recognizing their potential innovation. Startups needs to first identify and nurture their innovations, and then avail the measures for protecting it. Start-ups must always be mindful of the fact that protecting their IP rights wisely open ups multiple avenues for business opportunities and in turn, growth.

The Indian Government has indeed taken many accomplishing measures uplifting to make the Indian IP ecosystem more conducive. As per the annual report 2018-19, there is 9% increase over the previous years, for patent application filed by Indian applicants (17,005) and 4.2% increase in those from foreign applicants (33,654). The real effect of these amendments and inclusive steps can been seen in practice by looking to the fact that India moved to the 48th rank in the global innovation index 2020 from 81st rank within just five years, which is indeed quite commendable and remarkable.

Ms. Gopi Trivedi, the Senior Partner and Head of the Patent Division at Y. J. Trivedi & Co. is a Computer Engineer, a Registered Patent Agent and a Bachelor of Law.

Anay Amin is an Associate at Y. J. Trivedi & Co and he works in the Litigation Department of the firm. He completed his Masters in Law (LL.M) from Northwestern University,

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