Context: Central government is revamping the patent office functioning to reduce the massive backlog in granting official recognition for innovations by fast-tracking the hiring process and promotions of some existing officers to ease the process and looking at legislative changes to fix timelines for patent grants/rejections.
What are Patents?
- Patent grants exclusive rights for an invention which may be of a product or a process for 20 years.
- Patent is granted for:
- new invention
- involves an inventive step which did not exist before
- such thing has not existed before and has industrial applications.
- When a patent is granted on a particular invention, it means that no other person can either produce or sell for commercial purposes those inventions in the market without the approval of the creator of such invention.
- India grants legal protection to various inventions through The Patents Act, 1970.
Economic Objectives of Intellectual Property Protection:
- Promote investments in knowledge creation and business innovation by establishing exclusive rights to use and sell newly developed technologies, goods and services.
- Promote the widespread dissemination of new knowledge by encouraging or requiring rights holders to place their inventions and ideas on the market.
Objectives of National Intellectual Property Rights (IPR) Policy 2016:
National Intellectual Property Rights (IPR) Policy 2016 recognises the abundance of creative and innovative energies that flow in India, and the need to tap into and channel these energies towards a better and brighter future with suitable protection.
- IPR Awareness, Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
- Generation of IPRs – To stimulate the generation of IPRs.
- Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with the larger public interest.
- Administration and Management – To modernize and strengthen service-oriented IPR administration.
- Commercialization of IPRs – Get value for IPRs through commercialization.
- Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
- Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
Major Concerns on Patent Filing in India:
- Manpower Shortage: The major reason for delays is the lack of sufficient manpower in the patent office. Though some additional workforce was added in the patent office in the last few years, especially at the examiner level, it is very small when compared with China or USA. The increase in manpower at the examiner level does not correspond with the increase in manpower at the controller level. This merely shifted the pendency from the first examination level to the next stage. Approximately 1.64 lakh applications are pending at the controller level (which was 40,000 in March 2017) as of the end of March 2022 for which preliminary examination has already been done.
- No fixed timelines for each step of the process: The lack of timelines for each step leads to various issues.
- For instance, under Section 25(1) of the Patents Act 1970, a pre-grant opposition can be filed by any person opposing the patent at any time after the patent application has been published and before the grant.
- However, there is no fixed time frame and this leads to build-ups and delays. Lack of time frame for filing an opposition for a grant of patent is also misused for making frivolous complaints which keeps delaying the process.
- There is also no time limit prescribed in the law for the Controller to conduct a hearing to determine the validity of responses to the First Examination Report and any outstanding objections which may not have been adequately addressed by the applicant.
- Increase in Abandoned Applications: As per the Annual Report (2019-20) of the Office of the Controller General of Patents, Designs, Trademarks and Geographical Indications (CGPDTM) shows that the number of abandoned patent applications, on account of not meeting the requirements under the Patents Act grew by almost 350% (5,186 in 2010-11 to 23,291 in 2019-20).
- Cumbersome compliance requirements delay the process: There are certain provisions of the Patent Act 1970 which lead to cumbersome compliance requirements on the applicants. For instance, some provisions require an applicant to keep submitting information relating to the prosecution of foreign patent applications periodically.
- Not much focus on Industry-Academia Collaboration: One of the indicators of the Global Innovation Index (GII) is industry-academia collaboration where India’s score has decreased from 47.8 in 2015 to 42.7 in 2021. Consequently, India’s ranking in this indicator in the GII declined from 48 to 65 during this period. However, improvements in some other indicators have resulted in India’s overall ranking in the GII improving from 81 in 2015 to 46 in 2021.
- Increase in Manpower in Patent Office: There is a need to immediately sanction additional posts at the controller level to clear the current backlog of 1.64 lakh applications (which have already undergone preliminary examination) as of the end of March 2022. Further, a substantial increase in manpower is required in the patent office in the next few years to be able to compete with our global peers in terms of the scale of patent applications and the time taken to process them.
- Need for Skill Enhancement: To expand the available pool of trained workforce, a short certificate course (like a diploma) may be developed in collaboration with some academic/technical institutions that may be done concurrently with the existing graduation courses. There is a need to build the career path of the employees in the patent office to attract good talent to the patent office.
- Address Procedural Issues: Fixing timelines for each step of the process as per the laws of the United States – the time limit for any party to submit any material of potential relevance to the examination of the application is within 6 months after the date on which the patent application is first published.
- Remove the Cumbersome compliance requirements: For instance, there are requirements for applicants to keep submitting information relating to the prosecution of foreign patent applications in a periodic manner leading to high compliance requirements. Considering that now India is a part of WIPO Centralized Access to Search and Examination (CASE), such information can easily be accessed by the patent office for PCT applications.
- Consider bringing in utility model of patents: A utility patent is a special form of patent right granted by a state to an inventor for a fixed time period where the eligibility requirements are less stringent and the term of protection is shorter and these are cheaper to acquire as well. It secures protection for small innovations, which does not require the strict novelty and invention conditions as required by the patent law.
- Outsource the Administrative Process to a Third Party: The administrative process of the patent application process can be outsourced to a third party, as has been done in the case of the passport office so that the examiners and controllers can focus on the core technical work.
- Extensive use of machine learning/automation of administrative steps can be done to make the process more streamlined.
- China is the world leader in both filing and granting patents and has over 13,700 people in its patents office, and the US is the second largest, while India has just about 858 as of 2022.
- As of FY23, the total number of patent filings touched 82,809 of which 52.3% or 43,337 applications were from domestic companies and 39,472 were from foreign companies operating here. The domestic share was 37% in FY20 and 44.4% in FY22.
- In FY22 the number of patents granted stood at 34,153 from 82,805 filings and at 30,074 in the previous year from 66,400 filings. As against this, the numbers in China were 6.95 lakhs and 15.85 lakhs for FY22 and 3.27 lakhs and 6.95 lakhs in the U.S.