The patent is an exclusionary right for excluding others for using the technology protected under patent, in any possible way. A patent has a life cycle which starts much before the creation of Patent Application and moves up to enforcement of Patent until it’s lifetime. We divide the lifecycle of Patent into three phases:
Pre-filing of Patent Application
This phase refers to the conceptualization of the invention. The conceptualization can be accidental, as many break-through inventions have been; or it can be systematic. However, many times systematic processes for invention creation also leads to accidental inventions. In systematic process many of the research-oriented companies or institutions carry out various activities like, mapping Picture of the Future, Competitive Analysis with respect to a particular technical area, Technology Landscape creation to identify how the technology has evolved in a particular area, White Space analysis to identify area of technology which are less travelled or not yet travelled.
Based on various of these systematic approaches, an area of technology is selected for moving in, generally which are less travelled so as to avoid future infringements to the maximum. Further, even state of art searches are done to identify how a particular problem in a technical area used to be solved before. The state of art search provides guidance to structure the research and which eventually results in the invention.
Filing and Prosecution of Patent Application
Once the invention is conceptualized, it needs to be evaluated for Patentability. For this evaluation, a patentability search is carried out to further identify the point of novelty. If the point of novelty is identified and if it is significant to be added in the patent portfolio, the decision for filing a patent application for said novelty is taken. Then begins the process of Patent Drafting, where a techno-legal document having claims and specification is drafted.
Further, the application is applied to one or more Patent offices. For applying to different Patent offices, the claims and specification need to be compiled for those specific Patent Offices requirements. The patent is not applied to all the Patent Offices on the same day, rather a filing strategy is generated based on multiple factors, and on that basis, the application is filed in multiple countries using either of the two routes, Patent Cooperation Treaty (PCT) route, or Paris Convention route.
After filing the application, the application is prosecuted in each of the countries of filing and an examination is carried out for the applications. The applicant has to comply with the application report to get the Patent granted for the application.
Maintenance and Enforcement of Patent after Grant
Once granted, the application needs to be maintained by filing annual maintenance fees with the Patent Office, which is also called as Annuity.
Patents are commercial rights, the patent holder has to monitor his/her patent for infringement and government authorities do not intervene for the same. The monitoring is required not just online but also offline and is done through various Search Agencies. If the Patent holder identifies through his monitoring and infringement analysis that a third party is infringing his Patent, than he has to enforce his rights through Legal Notices to the infringer, taking administrative seizure actions at ports, search and seizure processes at the infringer’s location, and further though instituting Infringement suit against the infringer.
In counter, if the alleged infringer feels through Invalidation analysis that he can invalidate the Patent, then files for Invalidation proceedings against the Patent holder. Another way of enforcement is to move for licensing against the infringer rather than infringement proceedings. Having a licensing mechanism in place may result in effective commercialization of the Patent