Process of the First Examination Report & How It Affects Your Case

 Introduction

In India, for a patent application to be evaluated, a Request for Examination (RFE) must be filed. The patent examiner evaluates the patent application and prepares the FirstExamination Report (FER) only after the RFE. The RFE must be submitted within 48 months of the date of priority or filing, whichever is earlier by either the patent applicant of the patent application or by any other interested person.



Procedure

The patent examiner conducts a prior art search in the Indian Patent Database and all accessible databases, including patent and non-patent literature, while completing the examination of the patent application. The examiner conducts the search based on the date the entire specification was filed. The Indian Patent Act of 1970 requires that a request for patent examination be filed within the time frame specified and the Indian Patent Office will classify the patent application as withdrawn if the patent examination request is not filed within the prescribed time limit.

Once the non-provisional application has been properly developed and filed with the Patent Office with all required papers and fees, the Office awards the application a unique patent application number and filing date or priority date for reference and record purposes. Such first-filed applications are also known as a "priority applications" and their date of filing is referred to as "priority date". Typically, the patent application is published in the Official Gazette of India and becomes public domain 18 months following the filing date or priority date.

Next,the Patent Office evaluates all formal documentation, and patent examiners undertake a worldwide patentability search based on the invention's primary characteristics to look for any nearest previous art that is relevant to the application in issue. The application must be filed with the relevant jurisdiction, which is determined by the following criteria:

A.    Applicant's residence, domicile, or place of business (first applicant in the case of joint applications) or 

B.     the location from where an idea originated or

C.     In the event of a foreign application, the applicant's address for service in India.

The examiner evaluates whether the invention for which a patent application has been submitted is original, innovative, and capable of industrial application based on these previous arts. Furthermore, the examiner seeks "non-patentable innovations," which are inventions that are expressly prohibited from patentability.

By paying the official fee, an express request for examination before the expiry of 31 months can be made with respect to applications submitted under the Patent Cooperation Treaty (PCT) known as National Phase applications. Another provision for accelerated examination is that patent applications requesting expedited examination would be placed in a queue separate from patent applications for regular scrutiny. The expedited examination is provided for start-ups and applicants who have named India as an International Searching Authority (ISA) or International Preliminary Examining Authority (IPA) in their PCT application (IPEA). As a result, selecting India as an ISA can help to speed the grant process.

The patent examiner reviews the patent application and generates an examination report based on numerous patentability factors such as: -

  • Novelty;
  • Patentable subject matter;
  • Inventive step;
  • Industrial application and
  • Specification Enablement.

The Patent Examiner is responsible for conduct of a all-inclusive investigation of applications and preparation of a report under section 12 of the Act. They are also responsible for the conduct of an inter-office search encompassing all patent offices and raising objections on missing forms.

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