Patent Problems [India]

The country’s intellectual property protection regime has seldom been sans controversy, despite amendment of the Patent Act in 2005 to broadly align it with global norms. The latest salvo has been fired by about 150 patent experts and industry representatives, who have written to Prime Minister Manmohan Singh and demanded greater transparency and accountability in the granting of patents. A few weeks prior to this, the National Knowledge Commission had submitted a report to the government, pointing out several systemic problems with the patent office and commended an overhaul of patent-granting processes. Indeed, what is striking is that, though the number of applications being filed for patents has spurted several-fold, especially after the amended law came into effect and provided for product patents in addition to process patents, neither the patent office network nor the facilities available there have been adequately augmented. The patent application examiners are clearly not adequate to handle the swollen volume of work. It is no wonder then that the Knowledge Commission’s recommendation for creating an online database, containing complete information on patent applications and grants, copies of patent office decisions, and patent examination details, has not been implemented as yet. Such information is vital for pre-grant challenge. All that is done usually is to publish abstracts of claims which often happen to be the same as given by the patent seekers in their applications. The details of the patent examiners’ reports, indicating the reasons for accepting or turning down a claim, are mostly not disclosed, rendering the system opaque. This obviously leaves little room for public scrutiny, leave alone peer review, of the patent office’s decisions. Consequently, no more than a fraction of the total patent requests get contested at the pre-grant stage.

The disabilities of the patent office aside, the amended legal framework for patents has run into its own problems. The most direct reference to this was made in the report of the technical experts committee on patents, headed by the noted scientist, R A Mashelkar. It categorically stated that limiting the scope of patentability to new chemical entities alone violates Article 27 of the trade related intellectual property rights (TRIPs) agreement of the World Trade Organisation (WTO). Though this report was subsequently withdrawn by the committee following allegations of plagiarism, that does not make a material difference to the issue raised.

Under such circumstances, the scope for misleading the patent office to get frivolous patents or even ever-greening patents through selective information disclosure cannot be ruled out. It is, therefore, important for the patent office to provide electronic access to the proceedings leading to the grant of patent, including examination reports, so as to ensure transparency and fair play. Also needed is expansion in the staff, notably application examiners, and an upgrade of their technical competence through regular training. Such a measure has become all the more critical following the Indian patent office’s recognition by the WTO’s World Intellectual Property Organisation (WIPO) as the international searching authority and the international preliminary examining authority.