Software Patents are a type of patent on a piece of software such as Computer program, algorith...
A patent is granted for a period of 20 years considered from the date of filing of the patent. According to the Indian Patent Act, the patentee has to pay renewal fees up to the date of possession stated by the patent office. In case of the renewal/maintenance fees are not paid by the patent holder within the given time frame as prescribed by the Patent and Trademark Office, the patent will lapse. Here we will discuss restoration of a lapsed patent.
The renewal fee is payable as mentioned before the expiration date. Thus, it can be said that the renewal fee should be paid before the start of every succeeding year. However, this period can be made extendable by six months by requesting an extension of time. During the pendency of the application for patent or if the patent has been granted after the expiry period of two years from the date of filing,
The renewal fee has to be paid within a period of three months of the date of recording in Patent Registration or within an extended period but not later than a period of nine months from the recording date.
The Patents Act provides definite safeguards for restoring a lapsed patent. Consequently, a patent that has stopped to have an effect because of payment failure the agreed fees in the permitted period under the Act or within such a time, permitted under the Act.
The patentee of his legal representative may produce an application in the prescribed manner for the elapsed patient’s restoration. In the case where the patent was being held by two or more persons jointly then with the Controller’s leave, one or more of them without the joining by others may submit the application for restoration within a period of eighteen months from the date the patent has ceased to be effective. Although the renewal fees can be paid by any other person, the application for the restoration of the lapsed patent, the application has to be made mandatorily by the patentee or any of his appointed legal representative.
You can use an application in the prescribed form for the restoration of patents on which should be stated the reasons for the application. These must be supported by evidence, and if that evidence does not accompany the application then the comptroller will specify a period within which it must be filed. A mere attempt to pay the renewal fees does not constitute an application for restoration.
The necessary conditions are:
In the event, the request from the applicant for hearing within the permitted time is approved and the Controller after allotting the applicant’s hearing is satisfied on a prima facie basis that the applicant’s failure to pay fees for renewal is unintentional, he shall Opposition in Restoration.
It is observed that at any time within the period of two months from the publication date of the applicant, any interested person can give notice of opposition in the prescribed Form.
A notice copy related to the opposition shall be delivered to the applicant by the controller.
The specified procedure related to pertaining to written statement filing, reply statement filing, leaving evidence, hearing and costs shall to the required extent apply to the opposition’s hearing under the terms as applicable to the opposition proceeding’s hearing. Therefore publish the application.
When a decision in favor of the applicant has been made by the controller, the applicant can proceed to pay the unpaid renewal and additional fees according to the specifications of the First Schedule, within a month’s time from the date of the Controller’s Order permitting the application for restoration.