Tag Archives: DIPP

Obtaining a Certificate of Recognition from DIPP for IPR benefits

“A start-up would now require only a certificate of recognition from the Department of Industrial Policy and Promotion (DIPP) and would not be required to be examined by the inter-ministerial board, as was being done earlier. This is one rapid change that we have brought in,” said  Nirmala Sitharaman, Minister of Commerce and Industry in New Delhi at the ‘Start-up India States’ Conference’ in  2016.

This has been done to improve the ease of doing business by entrepreneurs, when earlier there was a complex and elaborate process of approaching the inter-ministerial board to procure the IPR benefits. After May 16, 2016, Start-Ups have been made eligible for expedited examination of Patent Applications.

This post particularly discusses the procedure of obtaining a ‘Certificate of Recognition’ from Department of Industrial Policy and Promotion (DIPP) before and after filing the Application of Patent.

Procedure to be followed varies depending on whether Start-Up has applied for Patent (and the application is published) or has not applied yet.

Type 1:

The procedure below is only for applicants who have NOT filed the application of patent.

The Application form is available on http://www.startupindia.gov.in/registration.php

Click on Startup India Services > Startup Recognition > Application.

  1. Fill the required information regarding the following ;
      a. Name of the Entity;
      b. Nature of the Entity – Private Limited Company/Limited Liability Company/Registered Partnership
      c. Incorporation/Registered No.
      d. Date of Incorporation/Registration
      e. Address of Registered Office
      f. Details of authorized representative
      g. Details of Directors/Partners
  2. Either of the following supporting documents are required to be filed in the Application for the Certificate.
      a. Letter of Recommendation, in a form specified by the DIPP from an incubator recognized by Government of India  ;or
      b. Letter of support by any incubator which is funded, in relation to the project, from Government of India or State Government as a part of specified scheme to promote innovation ; or

A panel of facilitators has been constituted for providing assistance and support in filing applications for Intellectual Property Rights (IPR), wherein, Department of Industrial Policy and Promotion (DIPP) would bear the facilitation cost. The list of the Incubators is available on ; –http://startupindia.gov.in/uploads/pdf/List_of_facilitators_for_patents.pdf

      c. Letter of Recommendation, in a form specified by the DIPP from an incubator established in post-graduate college in India; or.
      d. Letter of funding from the Government of India or any State Government as a part of specified scheme to promote innovation; or – If the Government of India or State Government has provided funds as a part of any scheme to promote innovation to the applicant, a Letter of Funding by GOI or State Government is admissible as a legit document to be submitted.
      e. Letter of funding of not less than 20 percent in equity by any Incubation Fund/Angel Fund/Private Equity Fund/Accelerator/Angel Network duly registered with Securities Exchange Board of India that endorses innovative nature of the business – If SEBI has funded,  not less than 20% in equity by any above mentioned Funds which endorses the innovative nature of the business of the entity to the applicant, A Letter of Funding by SEBI can be submitted.
      f. Letter of recommendation from Industry association recognized by DEPARTMENT OF INDUSTRY POLICY AND PROMOTION – A Recommendation  Letter can be obtained by any Industry Association or Organisation which is recognized by DIPP.

The list of Industries/Organisations which can provide for the letter of Recommendation  are available on www.startupindia.gov.in .

Click on Information> List of Industry Association/Organisations for Recommendation Letter.

  1. Incorporation or Registration Certificate- Company/ Partnership Incorporation/LLP/ Registration Certificate is MANDATORY to be submitted.
  2. A Brief note or a supporting document regarding the innovativeness of the idea of the product or services offered by the entity.
  3. With respect to tax benefits, note that, if you opt for tax benefits, your application will go to the Inter–Ministerial Board for evaluation, which may take time. If your aim is only to obtain benefits related to IPR, you can refrain from choosing the tax benefits option.

The FORMAT for the above mentioned “Letter of Recommendation,  Letter of Support from Incubator, Letter of Funding from SEBI, Recommendation letter from Industry Association/Organisation”  is available on http://www.startupindia.gov.in/startup-recognition.php

An application for a certificate is processed within a period of 10-25 working days from the date of Application, if accepted, the certificate is available to be procured.

Type 2:

The points below discuss the procedure for obtaining a Certificate of Recognition for applicants who have filed for patent and the same is published.

  1. Visit http://startupindia.gov.in/uploads/pdf/List_of_facilitators_for_patents.pdf and fill in the details requested in the form as mentioned above.
  2. Against Nature of Recommendation, Select “Patent filed and published in the Journal by the India Patent Office in areas affiliated with the nature of business being promoted”.
  3. Against “Supporting document based on the nature of recommendation selected above”, upload journal extract of publication of your patent application.
  4. Upload Incorporation/ Registration Certificate.
  5. Against “Brief note on innovativeness of products /services offered by the entity”, upload a document in PDF format that provides details relating to the nature of business of your company and why products /services offered by your company is innovative.
  6. As mentioned above, with respect to tax benefits, note that, if you opt for tax benefits, your application will go to the Inter–Ministerial Board for evaluation, which may take time. If your aim is only to obtain benefits related to IPR, you can refrain from choosing the tax benefits option.
  7. Submit the application upon self-certification.

PENALTY FOR FALSE REGISTRATION:
If the application is found to be obtained, without uploading the document or uploading any other document or a forged document, the concerned applicant shall be liable to a fine which shall be fifty per cent of paid up capital of the startup but shall not be less than Rs. 25,000/- (Rupees Twenty Five Thousand only).

About the Author: Himani Kohli, D.E.S Law College (Fergusson Capmus), Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at swapnils@khuranaandkhurana.com

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Advocates as Patent Agents

In a landmark (and in a way divisive) judgment, Justice S. Tamilvanan of the Madras High Court, on 15th March 2013, allowed the writ petition filed by Mr. S.P. Chockalingam (W.P.No.8472 of 2006) and declared the amendments introduced to Section 126 of the Patents Act 1970, by Section 67 (a) of the Patents (Amendment) Act, 2005 (Act 15 of 2005) as illegal, unconstitutional, ultra vires, void and unenforceable. Thereby restoring the status quo on the patent agent qualification under the Indian Patent Act, 1970 as was in existence before the Patents (Amendment) Act of 2005.

Now in order to comprehend the impact of the Madras High Court judgment and to know as to why this judgment is important, we need to get into the genesis of Section 126 and the legislative history of its amendments.

The original 1970 draft of Section 126 clearly said that Citizens (and not Advocates), who are Indians, over the age of 21 and had a ‘degree from any university’ in India could be registered as Patent Agents provided they clear the qualification exam conducted by DIPP. And as far as Advocates, those enrolled with the Bar Council had the prospect of getting registered and practice as a Patent Agent.

The 2002 Patent (Amendment) Act brought with it a slight change in Section 126, changing the words ‘degree from any university’ to ‘degree in science, technology or engineering’ and other than that everything else remained the same as the original 1970 version.

And then came the 2005 Patent (Amendment) Act, which in the course of amending Section 67(a), deleted Section 126 (1)(c)(i), due to which the Advocates with Science and Engineering backgrounds also, now no longer had the liberty as a ‘matter of right’ to be qualified directly as Patent Agents. Instead they were now required to clear the qualifying examination just as other citizens had to.

Pained by the amendments (though I am not completely sure whether the anguish was for the amendment of 2005, or for both 2002 and 2005 amendments!), Advocate Chockalingam in 2006, filed a Writ Petition under Article 226 of the Constitution before the Madras High Court in quest of a writ declaring the deletion of the amendment of 2005. What the petitioner contended was that the amendment of 2005 which omitted ‘advocates’ from Section 126’s domain was unconstitutional with reference to Section 30 of the Advocates Act, read with Articles 14, 19(1)(g), and 21 of the Constitution of India. It was also very correctly pointed out by the Petitioner that when the Patents Act does not provide any qualifications for being an inventor, then how is it that there could be a qualification for an inventor’s inscribe.  The present system meant that, where in one hand Advocates are allowed to argue Patent Matters, on the other hand they cannot file patents for his/her clients. Thus proving his point that there was no application of mind while omitting the word ‘advocates’ from Section 126.

The Judge, after listening to the contentions of the Petitioner, met the ends of justice by finding it equitable to allow the writ petition and declare that the impugned amendment as illegal, unconstitutional, ultra vires, void and unenforceable.

Now there are certain humble observations that I would like to make, which tells me that this decision passed by the Madras High Court is actually not completely correct.

I identify with the point that asking Advocates with Science backgrounds to clear qualifying examination to be registered as a Patents Agent is unfair towards them, when other citizens with just the Science background can go ahead and get registered as Patent Agents by clearing the same qualification exam. But the fact of the matter is that Patents being a field very different from other fields of law, makes it hard for ‘social engineers’ to file Specifications (complete or provisional) as explained in the Patents Act. A registered Patent Agent, in this case being a ‘social engineer’ with no knowledge of how to file a Specification (and trust me when I opine this that an ordinary case draft filed by an Advocate which he is taught during his LLB or BL degrees is poles apart and much less complex if compared to a Patent Specification explained in the Patents Act) will eventually prove to be a grave matter of concern to an inventor who will probably have to lose out on his hard worked and hard thought invention, just because now according to the Madras High Court every ‘social engineer’ who has a Science Background, has with him/her, “as a matter of right” the liberty to file a Specification.

Also in addition to the above point, what is observed by me is the fact that from a bare reading of the judgment, it can also be concluded that the Madras High Court even wanted to hold Section 53 of the 2002 (Amendment) Act as unconstitutional, but perhaps failed just because there was no challenge made for the said provision by the Petitioner.

And now after several months have passed since the Judgment by Honorable Madras High Court, the IPO has neither Implemented the decision nor has it Appealed against it. And on the other hand, there are several Advocates who are getting inquisitive to know as to how they can get registered as Patent Agents. Meanwhile, the only development regarding the case being an RTI filed by Mr. S. Venkatesh to the IPO, to which he was given the reply by IPO that the decision has been appealed for and since it is pending, nothing can yet be operationalized. This comes at a time when Advocates around the nation are wondering as to how they would be getting a ‘Patent Agent Number’ for themselves and as to why there is no information regarding the appeal filed by IPO (no information is coming from the Petitioner either regarding receiving of appeal papers!). Whoever is pursuing this matter and is contacting IPO for the same is being given the similar reply as was given to Mr. S. Venkatesh.

So basically as things stand today, Advocates with science backgrounds can automatically get registered as a Patent Agent. And the sheer absurdity in it being that they don’t even need to know how a Patent Specification is filed! But given the fact that the Respondents in the case are Controller of Patents and Union of India, the Petitioner can soon expect an appeal (actually it is just not the Petitioner who is expecting, but several other ‘curious’ Advocates too!) since it would highly be unlikely of the Respondents to let go of the monopoly they had been enjoying for such a long period of time!

About the Author: Mr. ABIN SAM, interns at Khurana and Khurana, Advocates and IP Attorneys.