The new patents regime

Merely speeding the process up will not suffice

The government’s attempt to expedite the process of granting patents by hiring more application examiners and digitising the procedures is a welcome move. The need for reforms in this field has long been felt to remove, or at least tone down, the taint the country’s intellectual property administration has acquired due to unduly long delays and lack of transparency in clearing patent applications. At present, the average time to dispose of a patent proposal is over six years, frustratingly longer than the international average of one-and-a-half to two years. The backlog of pending cases has already mounted to nearly 2.3 million. This is despite the fact that hardly about 43,000 applications are filed in India annually for intellectual property rights protection. Again, this is too few when compared with many rapidly developing countries, leave alone the developed ones. Worse still, over three-fourths of all the patent submissions are by foreign entities or individuals, who also corner nearly 80 per cent of the granted patents. This is a sad commentary on not only the Indian patent regime but also the science and technology pedestal of the country’s economic development. Moreover, it does not bode well either for the growth of science-based industries such as bio-pharmaceuticals or for the government’s much-hyped Make in India and Digital India initiatives, of which IPR security is a vital part. 

A notable point is that the patentability norms spelt out in the amended Indian patent law (2005) are at variance with those in many other countries. These do not permit ever-greening of patents on trivial grounds without proving any significant incremental innovation. The compatibility of the Indian definition of patentability with the global agreement on Trade Related Intellectual Property Rights has been scrutinised and validated through a slew of legal battles within the country and abroad. India has also come out with a new IPR policy and acquired membership of various global IPR-related protocols, including the Paris Convention, the Patent Cooperation Treaty and the Budapest Treaty, besides signing the Madrid Protocol that automatically extends the applicability of trademarks to nearly 90 countries. This makes the task of patent examiners all the more arduous as the provisions of all these pacts have to be kept in view while dealing with patent applications. 

This means the government should think through various aspects of the move while making the transition towards speedier grant of patents. Similar exercises in several other countries to achieve the same objective have encountered glitches of various kinds and ended up in lowering the functional efficiency and patent quality. Expeditious disposal of IP requests also quite often leads to a spurt in the filing of applications, thus mounting pressure on patent examination, review and processing systems. Unless manpower expansion and processing reforms go hand in hand with skills upgrade of the staff, the danger of an efficiency slump may be difficult to ward off. Besides, reforms in patent-issuing mechanisms would be of little avail unless the IPR instruments such as patents, trademarks and copyrights are effectively enforced. India’s record on this count leaves much to be desired. Piracy of intellectual property is quite rampant in many IPR-sensitive areas, including software, music and printed material. This must be stopped at all costs to instil confidence among innovators and innovation-driven commercial ventures in the country’s patent regime.