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Inohelp IP - Protecting Our Software Exports

Inohelp IP - Protecting Our Software Exports

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Published by Kshitij Malhotra

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Published by: Kshitij Malhotra on Apr 06, 2011
Copyright:Attribution Non-commercial


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India’s technology exports have grown considerably over the years.Software exports constitute a lion’s share of these exports. According
to recentNASSCOM reports, the software product exports have grown by 14.4 percent in the current fiscal year, touching about USD7.3 billion (INR 330 billion). Further, the reports predict the marketto grow exponentially, driven by an increasing number of start-upsoftware product businesses as well as a rapid growth of existingbusinesses.The growth in software exports have forced software companies tofocus on legally protecting their technologies/products in the coun-tries of export. This holds true especially for utility software productsdeveloped exclusively to be retailed in foreign markets. One way of legally protecting technologies/ products may involve securing theintellectual property by means of patents, more often than not com-plimented by copyrights. Trademark protection may also be consid-ered, to protect consumer interests in lieu of counterfeit branding.However, considering the encompassing and strong nature of patent protection, the focus of the companies shouldbe more on protecting their technologies/products by means of patents than protecting their products through anyother instruments.For applying patents abroad, the Indian patent laws provide 2 main routes. It should be noted that both the routesrequire utmost caution from the companies as missing any procedural formality or a deadline can be detrimental tothe patent obtaining efforts. The starting point of the patent obtaining procedure is, of course, to prepare a patentapplication, which includes a detailed description of the technology/ product, and most importantly one or moreclaims defining the scope of the protection needed. It is strictly advisable to prepare the patent application in a for-mat accepted by, and in accordance with, best practices of the patent offices of the countries where the technology/product is being intended to be exported. This is because the standards of an acceptable patent application in USand Europe differs significantly from the standards acceptable in India. Accordingly, it makes a lot of sense to hire apatent attorney/agent who has a global exposure in drafting and handling patent applications filed in these jurisdic-tions. Luckily, India has been a hot destination for patent outsourcing for some time now. Therefore, finding tal-ented patent attorneys having global exposure is not a difficult proposition for software companies.Once a patent application is prepared, the next step is to elect the route through which the patent application is tobe filed in foreign countries. The first route is to file the patent application in India, and follow the patent applicationwith aPatent Cooperation Treaty (PCT) application or with corresponding applications (Paris conven- tion applications) in the desired foreign countries, within 12 months from date of filing the patent application in In-dia. Now, the filing of the PCT application has advantages and disadvantages vis-a-vi filing convention applicationsdirectly in foreign countries. The most important advantage is that the filing of a PCT application provides a com-pany an extended time for selecting the countries to enter. This allows the companies to seriously deliberate uponcountries to apply for patents. Such deliberation is an absolute must as the cost of obtaining a patent in foreigncountries is very expensive, and the process is lengthy and saturating. One of the biggest disadvantages of filing thePCT application is, of course, the expenditure incurred to file the PCT application. For example, filing the PCT appli-cation, and transmitting it to WIPO, the administrative authority of the PCT application, costs (official charges)around INR 12,000 for companies.The second route, which is much more advisable for software and business method product/technologies, involvesfiling patent applications directly in countries of export, without filing a patent application in India. The advisability of this route is attributed to statutory laws, which exclude patenting of few classes of products/technologies, in India.
Protecting Our Software Exports

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