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Why Indian Patent law needs improvement?

Indian Patent Law

What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

History of Indian Patent Law

The history of Indian Patent law starts from 1911 when the Indian Patents and Designs Act, 1911 was enacted. The present Patents Act, 1970 came into force in the year 1972, amending and consolidating the existing law relating to Patents in India. The Patents Act, 1970 was again amended by the Patents (Amendment) Act, 2005, wherein product patent was extended to all fields of technology including food, drugs, chemicals and micro organisms.

Since then, The Patent Rules have been amended multiple times, the manual has been periodically updated, and the patent examination guidelines for various technical areas have also been issued and revised from time to time. All such efforts to streamline the overall patent ecosystem within the purview of the existing Patents Act have been largely appreciated by most of the stakeholders. However, there exists a long-felt need to make changes in certain provisions of The Patents Act itself.

Where does India lack?

  • India spent just 0.7% of its gross domestic product (GDP) in 2016-17 on Research and Development. Meanwhile, Japan, the US and China spent 3.2%, 2.8% and 2.1%, respectively, in 2017, according to the Organisation for Economic Co-operation and Development (OECD). India wants to more than double its R&D expenditure to at least 2% of GDP by 2022.
Indian Patent Law

Indian Patent Law

Indian Patent Law

Indian Patent Law

Indian Patent Law
Source: WIPO

Indian Patent Law

  • Another problem is that researchers in India tend to focus on publishing their work in journals instead of patenting them.
  • According to WIPO, 66.2 per cent of the patents filed in India is either withdrawn or abandoned. However, studies show that while processing the patents, the Indian patents office ends up erroneously granting patents that should not have been granted. One study finds around 72 per cent of error rate in granting pharmaceutical patents
  • In 2019, India on average took 64 months to grant a patent, compared with 22 months each in China and the European Patent Office and 24 months in the US, according to WIPO

Where is Improvement needed in Indian Patent Law ?

Improvement is much needed in the implementation of the law rather than amendments in law. Specially when we talk about the following:

  • Computer-related inventions: Section 3(k) bars patent ability of computer programs per se or algorithms. This objection exists as default for all computer-related inventions. The decision in such cases is not consistent with different controllers forming their own views in terms of the requirement of hardware and if it must meet the patent ability criteria.
  • Patent ability of derivatives of pharmaceutical substances: Section 3(d) restricts patent ability of derivative/s of a pharmaceutical compound. A derivative has to show significant difference in therapeutic efficacy with respect to the parent compound for overcoming the barrier of Section 3(d). Based on the explanations and decisions of the courts, the Section 3(d) objection should theoretically be raised only for derivatives of pharmaceutical substances. However, the objection is invariably raised for all applications relating to pharmaceutical drugs even in the case of innovator compounds.
  • Patent ability in the life sciences/ biotechnology sector: The life sciences sector faces hurdles in terms of patent ability of diagnostic methods and kits because they fall within the category of diagnostic/treatment methods. Further, isolated DNA sequences are also the subject of objections for not satisfying the novelty requirement. Thus, the patentee in such cases faces problems in convincing the controller of the patent ability of the subject matter.
  • Backlog and time for final decision: The basic challenge in the enforcement of patent rights is the time it takes for the court to make a final decision. A patent lawsuit ordinarily takes approximately five to seven years to be finally decided after trial, if contested by the other party. The Commercial Courts Act is helping to speed up the process with case management hearings and time bound trials. However, the backlog of cases at the court and shortage of judicial officers have an impact on the time it takes for a final decision on a case.
  • Subject matter experts: Section 115 of the Indian Patent Act provides for appointment of a scientific advisor to assist the courts in providing opinions on technical aspects of a matter. The provision has not been frequently made use of by the courts. The appointment of a technical expert in patent infringement suits will not only help to improve the quality of the decision but also reduce the time period for final decision.

Indian Patent Law

Conclusion:

With the advances China and the US are making in communications, artificial intelligence, and healthcare technology, India cannot afford to sit on the sidelines, and the only way for the country to get in on the action is to ramp up its R&D efforts and engender a culture of patenting.However, there has been some improvement in recent years. According to NASSCOM’s recent report “IoT: Driving the Patent Growth Story in India”, the global Internet of things spending is expected to increase at a CAGR of 8.1% to cross the one trillion mark by 2023. Moreover, the new sectors which will see increased usage of IoT in order to achieve the new normal includes:

  • Healthcare
  • Disaster Prevention
  • Public Safety and Security
  • Manufacturing and Supply Chain
Indian Patent Law

Indian Patent Law

Indian Patent Law

Indian Patent Law

This article is written by Mahima Rathod and edited by Rupreet Kaur Dhariwal.

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