Author name: fsadmin

Introduction The objective and purpose of patent law is to encourage scientific research, new technology and industrial projects. Grant of exclusive rights to own, use or sell the method or the product patented for a limited period stimulates new invention of commercial utility. The fundamental principle of Patents Act, 1970 is that the patent is granted for that invention which is new and useful. It must have the novelty and utility. It is essential for the validity of the patent that it must be the investor’s own discovery as opposed to mere verification of what was already known before the date of patent. Patents Act, 1970 was made to protect Indian drugs, pharmaceuticals, chemical industries and Indian agriculture from foreign competition. In some cases only process can be patented but product cannot be patented i.e., in cases where only process is patentable, manufacture of that product by different process by another person is not an offence under the Patents Act, 1970. Meaning of Patent Patent means a patent granted under the Patents Act, 1970. Patents is a grant from Government which confers on the grantee, for limited period of time, the exclusive privileges of making, selling and using the invention for which patent has been granted and also of authorizing others to do so. A patent is a contract between the society as a whole and individual inventor. The inventor gets the exclusive rights to prevent others from making, using selling a patented invention for a fixed period of time, in return for the investors disclosing the details of invention to the public. In this way, inventor is rewarded for his/her endeavours and he is encouraged to disclose the benefits arising out of his/her invention. Patent rights are granted only to new inventions capable of industrial application. The document in the prescribed form duly signed by the concerned authorities and seal is called the patent. A patent right is a property which can be bought, sold, hired or licensed. What can be patented? Any “invention” may be patented. “Invention” means new product or process involving an “inventing step” and “capable of industrial application”. “Inventing Step” means a feature that makes the invention not obvious to a person skilled in that art. “Capable of Industrial Application” in relation to invention means that the invention is capable of being made or used in the industry. Thus, “Patentable Invention” is an invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However it must not fall in to the categories of inventions that are non-patentable under section 3 and 4 of the Patents Act, 1970. What cannot be patented? Anything, which is not an invention, cannot be patented. Patents Act, 1970 provides that the following shall not be covered under the concept of invention: If its use is contrary to law or morality. Mere discovery. Aggregation of properties by mere mixture of 2 or more things. Re-arrangement or duplication. A method of agriculture or horticulture. Any process for the medical, surgical, diagnostic or other treatment of human beings or animals. Plants and animals other than micro-organisms but including seeds, spices, and other biological processes. Literary, dramatic, musical or artistic work or cinematographic films or any other aesthetic creation. A mathematical or business method or computer programs. Method of performing any mental act or method of playing any game. A presentation of information. Topography of integrated circuits. Inventions based on traditional knowledge. Inventions relating to atomic energy Mere new form or new property or new use of an existing drugs, chemicals, or other substances, until and unless it results in enhancement in quality or efficacy. Who can make an application for grant of Patent? Any person claiming to be the true and first inventor of the invention. Any person, being the assignee of the person claiming to be the true and first inventor of the invention. Legal representative of any deceased person who immediately before his death was entitled to make such an application. Patent Search  Patent search is done to verify the uniqueness of your invention. Patent can’t be similar or same to any other patent. Patent search can be done by yourself but you need to be skilled and attentive. A patent search typically deals with search, research, and data mining. It includes a search of the database of the intellectual property regulator of India to verify whether an already existing object or invention is either identical or similar to the applicant’s invention. Importance of Patent search Checking validity of patent.  Helps to know about similar inventions done.  Helps in saving money and time.  Provides freedom to operate independently.  How to search for Patents? To make searching more comfortable, every patent is divided by it’s subject matter. Patent classification schemes have a tree-like structure, and all level of classification has a different reference code. Inventions are classified into technologies Example: – “Engineering” has been divided into classes like mechanical engineering and then into subclasses like machines or equipment. Patent classification is a hierarchical system that incorporates a patent according to the state of technology it falls into. It performs managing and searching patents that fall into the identical technical group or sub-group. There are various patent classifications like the International Patent Classification, Cooperative Patent Classification (CPC), etc. The 2 main group schemes used by patent offices globally are: The International Patent Classification includes about 70,000 different IPC codes. You can survey the class headings and do keyword searches on the WIPO website IPC page. We use this type of system as it’s more common. The Cooperative Patent Classification is an expansion of the IPC. It’s together controlled by the European Patent Office and the US Trademark and Patent Office. Provisional Patent A Provisional Patent application is an interim step on the road to a patent. It is effective because by filing an appropriate provisional patent application a person can market the invention without fear of losing his patent rights,

Let’s understand in detail: What is Foreign Company, Branch Office/ Liaison Office Permitted and Prohibited areas  Rules and regulations for establishment of branch/liaison offices Tax Implications Note: This definition includes a Branch Office; all the provisions of the Companies Act applying to the company will also be applicablefor BO. Meaning of Branch Office (BO) A Branch office is an extension of foreign entity for carrying out the permissible activities in any other country/countries. The role of BO is to undertake the permissible activities in India. Permissible Activities: Export / Import of goods. Rendering professional or consultancy services Carrying out research work, in areas in which the parent company is engaged. Promoting technical or financial collaborations between Indian companies and parent or overseas group company. Representing the parent company in India and acting as buying / selling agent in India. Rendering services in information technology and development of software in India. Rendering technical support to the products supplied by parent/group companies. Foreign airline / shipping company. Normally, the Branch Office should be engaged in the activity in which the parent company is engaged. Prohibited areas: Retail trading activities of any nature is not allowed for a Branch Office in India. A Branch Office is not allowed to carry out manufacturing or processing activities in India, directly or indirectly Meaning of Liaison Office (LO) A Liaison office is a representative office of foreign entity which act as a channel of communication between Head Office abroad and parties in India. The role of LO is notundertaking any commercial activities but limited to collecting information and providing information about the company to the prospective Indian Customers. The Permission to set up such offices is initially granted for a period of 3 years and this may be extended from the date of expiry of the original approval/ extension granted by the RBI, if the applicant has complied with the conditions as prescribed by RBI. Permissible Activities: Representing in India the parent company / group companies Promoting export / import from / to India. Promoting technical/financial collaborations between parent/group companies and companies in India. Acting as a communication channel between the parent company and Indian companies. Note: However, no foreign law firm shall be permitted to open any LO as per recently passed order by the Supreme Court of India. Compliances for establishment of branch/liaison offices A body corporate incorporated outside India (including a firm or other associations of individuals), desirous of opening a Liaison office/Branch office have to obtain permission from the RBI under provisions of FEMA 1999. The application for establishing BO / LO in India should be forwarded by the foreign entity through a designated AD Category – I Bank to the address of – Foreign Exchange Department, Reserve Bank of India. The application should be forwarded along with prescribed documents which includes – English version of the Certificate of Incorporation / Registration or Memorandum & Articles of Association attested by Indian Embassy / Notary Public in the Country of Registration. Latest Audited Balance Sheet of the applicant entity The applications from such entities in Form FNC (Annex-1) will be considered by Reserve Bank under two routes: Note: – Applications from entities falling under this category and those from Non – Government Organizations / Non – Profit Organizations / Government Bodies / Departments are considered by the Reserve Bank in consultation with the Ministry of Finance, GOI. Criteria which are considered by the RBI while sanctioning Branch office/Liaison Office of foreign entities: Requirements For Liaison Office For Branch Office Profit making track record Immediately 3 FY in the home country. Immediately 5 FY in the home country. Net Worth >USD 50,000 or its equivalent. >USD 100,000 or its equivalent. The application in Form FNC shall be filed to an Authorized Dealer Category – I along with prescribed documents viz., Copy of Certificate of Incorporation/Registration attested by the Notary Public in the country of registration. AOA/MOA attested by the Notary Public  Audited Balance Sheet  Bankers’ Report from the applicant’s banker in the country of registration showing the number of years the applicant has had banking relations with that bank. Bankers’ Report from the applicant’s banker in the country of registration showing the number of years the applicant has had banking relations with that bank. Note: Applicants who do not satisfy the eligibility criteria and are subsidiaries of other companies can submit a Letter of Comfort from their parent company as per Annex-2, subject to the condition that the parent company satisfies the eligibility criteria as prescribed above. Compliance under Companies Act, 2013 Such foreign companies shall be governed by the provisions of: (i) Chapter XXII of the Companies Act, 2013 (ii) Companies (Registration of Foreign Companies) Rules, 2014 Rule 3(3) of the Companies (Registration of Foreign Companies) Rules, 2014 requires every foreign to file e-Form FC-1 to the Ministry of Corporate Affairs within 30 days of the establishment of its place of business in India.  And Rule 3(4) provides that in case of any alteration in the aforesaid documents the Foreign Company is require to submit a return in e-Form FC-2 containing the particulars of alteration as per the prescribed format with the Registrar of Companies, within 30 days of any such alteration. Allotment of UIN Number The Branch / Liaison offices established with the Reserve Bank’s approval will be allotted a Unique Identification Number (UIN). The BOs / LOs shall also obtain Permanent Account Number (PAN) from the Income Tax Authorities on setting up the offices in India and report the same in the Annual Activity Certificate (Annex 3). Note: The Reserve Bank or the Government of India, as the case may be, reserves the right to reject an application for non-fulfilment of any other condition/s not specifically referred above. Note: The Reserve Bank or the Government of India, as the case may be, also reserves the right to verify / examine the activities of the BO / LO of the foreign entities established in India and to withdraw the permission already granted, after due notice, if the circumstances

Non-government organizations in India can be structured and incorporated as one of the following three forms: Trust Society Non-Profit Company under Section 8 of The Indian Companies Act, 2013 Comparison between a trust, a society and a non-profit company Trust Society Section 8 Company Statute Indian Trust Act, 1882 Societies Registration Act, 1860 The Companies Act, 2013 Jurisdiction  Concerned state where registered Concerned state where registered Concerned state where registered Authority Charity Commissioner / Deputy Registrar Registrar of Societies Registrar of Companies Registration As Trust As Society As Section 8 Company Main Document Trust Deed Memorandum of Association and Rules & Regulations Memorandum and Articles of Association Stamp Duty Trust deed to be executed on a non-judicial stamp paper of prescribed value No stamp paper required for Memorandum of Association and Rules & Regulations No stamp paper required for Memorandum and Articles of Association Number of persons needed to register Minimum two trustees; no upper limit Minimum seven; no upper limit Minimum three; no upper limit Board of Management Trustees Governing body or council/managing or executive committee Board of directors/Managing Committee Mode of succession on board of management Usually by appointment Usually election by members of the general body Usually election by members of the general body Registration of a Trust A Trust is formed when an owner of a property (trustor) transfers it to a person who is known as trustee, for the benefit of third party who is known as beneficiary. There are two types of Trusts- Public Trust and Private Trust. It is governed by Indian Trust Act, 1882 across India. Eligibility/Requirements of Trust Incorporation:- Minimum of two trustees.  Forming Trust Deed. Documents required for Trust Incorporation:- Proof of identity of the shareholder. Such documents include Aadhaar, PAN, Passport, Driving license or any other Government-issued identity document would be required. Proof of address of the shareholder. Such documents include bank statements, electricity bill, water bill, gas bill and telephone bill. NOC (Non Objectionable Certificate) from the landlord if the registered office is a leased property. Proposed registered office’s utility bill which includes EB bill, property tax receipt, water bill copy. Trust deed on stamp paper. Scanned copy of Sale deed if the registered office is owned property.  Process of incorporation of Trust:- Selection of Name and getting it approved Forming a Trust deed Getting the trust registered by submitting documents required to the registrar Getting PAN number, TAN number and opening bank account of the Trust  Advantages of Trust:- Management continues even after the disability of the member.  Better control over assets. Investment management remains uninterrupted.  Flexibility of using funds.  Disadvantages of Trust:- High incorporation cost.  Cash can be accessed by creditors.  Not so responsive to changes.  Property has to be reregistered in the name of trust which involves cost.  Registration of a Society A society is a business done to serve society by group of members and not to earn profits. It is registered as a legal entity under The Societies Registration Act, 1860. It is generally formed for charitable activities.  Eligibility/Registration for registration:- The objective shall be legal and for charitable, scientific and literary purpose.  Minimum of 7 members.  Documents required for registration of Society:- NOC from the landlord if the registered office is a leased property. In case of own property, copy of sale deed along with the EB bill/property tax receipt/water bill copy of the registered office property. Proposed registered office’s utility bill which includes EB bill, property tax receipt, water bill copy. (Address proof) Proof of address of all the directors and the shareholders. Such documents include bank statements, electricity bill, water bill, gas bill and telephone bill. Proof of identity of all the partners. Such documents include Aadhaar, PAN, Passport, Driving license or any other Government-issued identity document would be required. Affidavit no. 1 for NOC of registered office and its ownership.  Affidavit no. 2 for name of the society and members not being related to each other. Process of registration:- It includes-  Selection of name.  Creation of MoA and signing MoA by all members after required document submission.  Advantages of Society:- Having contractual rights being a separate legal entity.  Exempted from income tax. Limited liability of members.  Having secured assets.  Disadvantages of Society:- Transparency leads to lack of secrecy.  Undue government interventions. Registration of Section 8 company These are limited companies, which are registered under the Companies Act, and will be treated as limited companies without the phrase “limited” being added to their name. They may have been registered either as “private limited or public limited companies”. Features/Eligibility of a Section 8 Company:- Is incorporated for the promotion of commerce, art, science, education, research, sports, charity, social welfare, religion, protection of environment or any such other object. It intends to apply all it’s profits, income, or other earnings, in promoting these objects. Pays no dividend or income to its members. Requirements of a Section 8 Company:- Registration under The Companies Act, 2013 and get licensed. Minimum 2 directors for Private Limited Company and 3 directors for Public Limited Company must be there. At least 1 director must resident in India, means a person who has stayed in India for a period of not less than 182 days during the immediately preceding 1 financial year. MOA and AOA. All directors must have their valid DIN and DSC. Annual returns, filings and other compliances should be done. Advantages of Section 8 company:- Distinct Legal Identity Zero Stamp Duty No Minimum Capital Requirement CARO requirements don’t apply here Many tax benefits More credibility Exemption to the donors Documents required:- Copy of PAN Card Aadhaar Card Address Proof (Bank Statement, Electricity Bill, Telephone Bill) 2 Passport Sized Photographs Ownership Proof of  registered office(House Tax etc.) Utility Bill (Electricity Bill, Gas Bill) NOC(from the owners – if the premises is rented) Process of registration:- Apply for name approval Get DIN & DSC Name Approval Apply for License & Certificate of Incorporation Some other forms on ROC PARTICULARS  FORM OF BUSINESS  SOLE PROPRIETORSHIP PARTNERSHIP  LIMITED