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Is your honor for sale?
While walking down a country lane, you meet a troll. She is in desperate need of honor and offers to buy yours from you for a sum a gold. Name that sum!
Not for sale.
If you have an invention, which is patentable and can be reduced to practice, then what is better? Filing of patent in the inventors' own country and then filing through PCT route or filing directly through PCT route? This article takes you through some of the cases, which can decide on patentability strategies concerned with market potential.
A patent is a territorial right or monopoly given by a state (authority) to an inventor against the complete disclosure of the invention. Patent grants the right to the inventor to prevent others from use, manufacture, and sale of the invention in that territory for a stipulated time period. It does not however include the right for the inventor themselves to practice the invention as this may be limited by legislation, regulations or the existence of another dominating patent.
Whilst there is no such entity as a 'World Patent', it is possible to file a single international application thanks to the Patent Cooperation Treaty (PCT) which can then be used as the basis for patent applications in over 130 contracting states (including the European regional route). The main benefit of the PCT route is that it defers the more expensive national filing decisions to 2.5 years after the initial filing date, thereby allowing more time to seek a commercial backer.
The answer to this lies on viewing the commercial aspect of the invention.
First, when do you want to start to commercialize or reduce your invention to practice and second where do you want to commercialize. Also, fees for maintenance and national phase entry fees through PCT route play an important part in deciding filing your patent strategy.
Consider following case studies:
Case I: You (as an inventor) want to only commercialize your invention in your own country and not in other countries.
In this case, it is better to go for filing in your own country. If you are ready with your invention then go for Express filing route so that your patent gets granted as early as possible (might be in 6-9 months time). It wont be a good idea to commercialize the idea first and then filing for a patent as it can become a basis of invalidation of your own patent due to early commercialization.
If you need time for commercialization (say around 2 years), then go for normal filing procedure in India, as during the time your patent gets granted, your idea will be reduced to practice and will be ready for commercialization.
This strategy is adopted by many of the small assignees in Asia (specifically China, Korea, Japan). Many assignees in Asia specifically go for their country-based filing and grant procedure, as they just want monopoly in their own country, reason is that they only want monopoly in their own country or other neighboring countries. They donot want to explore other countries as there may be high fees/taxes or hassles during import/export.
Case II: Your product is ready to get commercialized and have high market potential in your own country but you need time to evaluate the potential of other countries.
In this case, its better to go for filing in own country first, so that you get the priority for your invention and then file though PCT route. Through PCT route you designate all countries (designation of all countries is automatically done if no specific countries are chosen) and then you get a time period of 30 months to enter into specific national phase. This time period of 30 months is sufficient for carrying out the market analysis and then narrowing down to some countries where the market for your product is high. You can also get an idea from the commercial aspects / details that how is your product selling as you have already filed patent first in your own country and commercialized your product.
An example, which I can quote here, is commercialization of fairness cream for women. As you have commercialized your product in India, you will find that the fairness cream product is doing great market in India, but consider that you are planning to commercialize the same product in Muslim dominated countries. One thing to consider here is that in Muslin dominated countries, normally all women wears veils while going out of their houses. Hence, they are not that exposed to sunlight and hence your product would not have as much market as in India or other parts of the world. These factors and other marketing details will give you an idea about the market potential of your product in that specific country. From these details and market reviews you can decide i which countries you need to enter into national phase through your PCT patent application for your invention. To decide you have a time period of approximately 30 months as mentioned in the procedure for national phase entry through PCT route.
Case III: Your product is not ready for commercialization but you want to file your invention in multiple countries.
In this case, you can adopt both the ways 1) PCT filing and then enter into national phase of multiple countries (also entering in your own country) and 2) filing in India and then filing through PCT route.
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