The Tyranny of the Indian Patent System

IP laws are extremely important for the scientific development of a country. Strong IP legislations ensure the progress in varied fields and result in the growth of a country’s knowledge bank. However, it is of utmost importance that the strong IP laws must be ably supported by an equally strong enforcement mechanism as well. Fair, strong and non-discriminatory IPR enforcement creates economic incentives that encourage innovation. A strong IPR regime helps attract new investment and allows innovators to develop new technologies. Weak intellectual property enforcement is a major barrier to increased trade. This is unfortunately the case with the IPR enforcement in most of the developing countries, including India.

Indian IP policy despite being in compliance with the International standards provided by the TRIPS Agreement is often alleged to be weak and ineffective. India ranked last in the recent GIPC Index of conducted by the US Chamber of Commerce and was blamed for having the weakest IP environment in regard to protection and enforcement of IP rights. The weak enforcement of IP rights in India is quite evident. This often leads to a situation where IP right holders do not get the chance to enjoy their IP assets fully.

The Shortcomings

India lags in overall patent filings. Apropos of the data published by the World Bank for the years 2005-2012 the total number of patents filed in Japan is 3424726 out of which 2907033 have been filed by the residents and 517693 by non-residents; in China it is 2934181 out of which 2102532 have been filed by residents and 831649 have been filed by non residents; in the US almost 4078846 patents have been filed out of which 2075543 have been filed by the residents and 2003303 have been filed by the non residents; in the EU almost 1218402 patents have been filed out of which 968119 patents have been filed by residents and 250283 patents have been filed by non residents; in the Russian Federation almost 348111 patents have been filed out of which 239246 patents have been filed by residents and 108865 patents have been filed by non residents; and in India 303499 patents have been filed out of which only 59988 patents have been filed by the residents and 243511 patents by the non residents. The data clearly shows how the Indian local firms lag behind their developing nation counterparts in filing patents. Astonishingly, despite the small no. of patent applicants, the Indian Patent office struggles from the increasing number of patent applications and constantly grapples from issues such as patent application backlogs and the lack of resources.

Data

In India, the number of patents filed by foreign bodies is much higher as compared to Indians/Indian firms.  In the year 2005-06 the total number of patents filed by Indian residents was only 4512 as opposed to 19984 by non residents; in 2006-07 it was 5314 against 23626; in 2007-08 it was 6040 against 29178 and 2008-09 it was 6161 against 30651 filed by the non residents. One of the reasons for such poor figures in patent filings   could be because most of the Indian businesses are service providers instead of technology-based innovation companies.

The Bayh-Doyle model which was implemented in 2009 aimed at promoting publicly funded R&D and early translation of them into commercial use. But as per the patent office’s annual data there’s no significant improvement in filings from public institutions. Even for the patents that are filed, a very few are processed. There’s a huge backlog that has been created because of poor infrastructure. India had almost 56171 pending patent applications in 2005 – the year India amended its patent act to bring its compliance with the WTO requirements. The number almost doubled to 194000 by the year 2013. Why? Because the number of examiners has not increased significantly enough as the number of applications. If we go by the figures, the numbers of examiners was 140 in the 2005-06 as compared to 201 in the year 2012-13. By looking at this figure, it could be implied that each examiner has to go through 18 applications per month if all the filings in the year are processed.

The workload per examiner is much higher in India as compared to the US or EU. This indirectly affects the quality of the patent grants in the country. Though, in the recent years, the number of applications per examiner has come down which may indicate that the applications are examined carefully, it also indicates that the number of patent applications filed lately are less.

e workload per examiner is much higher in India as compared to the US or EU. This indirectly affects the quality of the patent grants in the country. Though, in the recent years, the number of applications per examiner has come down which may indicate that the applications are examined carefully, it also indicates that the number of patent applications filed lately are less.

What could be done to bring about a change in the Indian Patent System?

  • The delayed processing of applications and other actions in the IP offices is one of the major reasons for short enjoyment of patent rights by patent holders in India. It takes 6-7 years to receive a grant for a patent cutting short the life of a patent drastically. Hence, a major improvement in the infrastructure of Patent Offices is required.
  • One of the important aspects of Indian Patents Act is the compulsory licensing of certain type of patents, especially the ones that are for pharmaceutical drugs. If the clauses pertaining to compulsory licensing are tweaked in a certain way, it might encourage innovation and promote FDI.
  • It is required to encourage local inventors, firms and institutes to file patents in India. This could be achieved by creating IP awareness among the stakeholders and public at large. Creating awareness in regard to IP rights and their enforcement would not only help the IP holders enjoy their rights fully but also encourage others to create more and deter the infringers from violating the rights of others.
  • IP holders don’t get to enjoy their IP rights long enough as the term of IP is shortened due to lengthy judicial processes in India. Introduction of Fast-Track Judicial Processes would help shortening the lengthy judicial processes so that the IP holders can reap the rewards of their hard work.
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