Patent Regime in India, Advantages, Challenges

Context: India has made significant reforms to its patent system to improve efficiency, but there is now a concern that quality may suffer.

What is a Patent?

A patent is a form of intellectual property granted by the government to inventors. It provides the owner with the legal right to prevent others from making, using, or selling an invention for a specific period.

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Patent Regime in India

The patent regime in India is governed by the Patents Act of 1970. To be granted a patent, an invention must meet the following criteria:

• Novelty: The invention must be new and not have been disclosed to the public before the filing of the patent application.
• Inventive Step: The invention must involve a non-obvious step that would not have been obvious to a person skilled in the art at the time of the filing of the patent application.
• Industrial Applicability: The invention must be capable of being used or applied in an industry.

Exclusions from Patentability

Certain inventions are specifically excluded from patentability under the Patents Act of 1970. These include:

• Discoveries, scientific theories, and mathematical methods
• Plants and animals and other living organisms in the whole or any part thereof other than micro-organisms
• A process for the mere production of an agricultural product or an animal product by an agricultural process
• Methods of agriculture or horticulture
• Any process, method or manner of treatment of the human body by surgery or therapy

Amendments to the Patents Act

The Indian Patent Act of 1970 was amended in 2005 to align with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO). This amendment introduced patents for pharmaceutical products, which had previously been excluded from patentability.

India’s Obligations under International Conventions

India is a signatory to several international conventions related to intellectual property, including:

• Berne Convention for the Protection of Literary and Artistic Works
• Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
• Paris Convention for the Protection of Industrial Property
• Patent Cooperation Treaty (PCT)
• Doha Declaration on TRIPS and Public Health

Advantages of a Robust Patent Regime in India

• Promotes a culture of research and grassroots innovation: A strong patent system encourages inventors and innovators to come up with new ideas and technologies, as they know that their intellectual property will be protected. This can lead to the development of innovative products and services that benefit society.
• Greater foreign investment: A robust patent regime can attract foreign investment into India, as multinational corporations (MNCs) are more likely to invest in countries with strong intellectual property protection. This can lead to job creation, economic growth, and technology transfer.
• Promotes exports: A strong patent regime can help India develop niche technologies that can be exported to other countries. This can boost India’s trade balance and improve its global competitiveness.
• Social benefits: Patents play a pivotal role in solving contemporary social issues such as climate change, poverty, and hunger. For example, patents have been granted for technologies that can capture carbon dioxide from the atmosphere, which could help to mitigate climate change.
• Fulfills India’s obligations: A strong patent regime helps India fulfill its obligations under international conventions such as the TRIPS Agreement, which requires countries to provide adequate protection for intellectual property.

Challenges in Developing a Strong Patent Regime in India

• Low expenditure by the private sector in patent development: The majority of India’s R&D spending comes from the government, rather than the private sector. This is in contrast to developed countries, where the private sector is the main driver of R&D and patent filing.
• Provisions of compulsory licensing: Compulsory licensing is a mechanism that allows the government to grant permission to a third party to use a patented invention without the consent of the patent holder. This is typically done in cases of public health emergencies. However, the fear of compulsory licensing can discourage companies from investing in R&D in India.
• Provisions against evergreening of patents: Evergreening of patents is the practice of filing new patents for minor modifications to an existing invention, thereby extending the patent life. Section 3(d) of the Indian Patent Act prohibits evergreening of patents. However, this has been a concern for some industries, such as the pharmaceutical industry.
• Abolition of the Intellectual Property Appellate Board (IPAB): The IPAB was a specialised tribunal that handled patent disputes. However, it was abolished in 2021, and its functions were transferred to the Commercial Courts and High Courts. This has led to delays in the resolution of patent disputes.
• Poor implementation of patent laws and poor enforcement mechanisms for patent violation: India’s patent laws are relatively strong, but enforcement is weak. This makes it difficult for patent holders to protect their intellectual property rights.
• Infrastructure and human resources issues: India’s patent offices are understaffed and underfunded. This leads to delays in the filing and granting of patents.
• Protection of generic medicines in India: India has a strong generic pharmaceutical industry, and the government has been reluctant to grant patents to foreign pharmaceutical companies that could make generic drugs more expensive.

Way Forward in Developing a Strong Patent Regime in India

• Learning from China’s failure to improve the quality of patents: India should focus on reducing the number of “junk patents” that are filed. It should also encourage the development of “triadic patents” that can be filed in major tech markets such as Japan, the US, and Europe.
• Post-facto analysis of patent quality: India should carry out a post-facto analysis of patent quality to assess the value of patents. This could be done by looking at the volume of citations a patent receives.
• Robust Intellectual property regime: India should focus on making its Intellectual Property Rights regime even more robust. This could be done by strengthening enforcement mechanisms and making it easier for patent holders to obtain relief when their patents are violated.
• Re-establishment of Intellectual Property Appellate Board (IPAB): India should re-establish IPAB to provide a specialised forum for the resolution of patent disputes.
• Public awareness: India should create public awareness about the economic, social, and cultural benefits of IPRs. This could help to increase support for a strong patent regime.

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