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Opinion: It’s about time for patent reform in India

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With the last amendment to the Patents Act in 2005, key changes are urgently required to boost innovation and ensure access to technology

Innovation in India needs a major push with strong legislative reforms for patents. In a country with a population of 1.3 billion where public interest is paramount, the question is how do we go about such reform?

While innovators across the world have lobbied for stringent patent protection to sufficiently reward them for bringing their inventions to market, public welfare advocates in India have demanded further strengthening of the consumer and generics-friendly provisions.

One cannot discount public welfare in a country with the second-highest population in the world. And not forgetting, India is the largest provider of generic drugs globally and meets over 50% of the global demand for various vaccines, according to a report by the India Brand Equity Foundation.

The COVID-19 pandemic came as another reminder that intellectual property laws should not just focus on profiteering but also take public interest into consideration.

On the other hand, let us look at the patent filing and registration figures in India as quoted in the Parliamentary Standing Committee’s July report on the review of the IP rights regime in India.

“The committee is distressed to note that in the year 2019, only 24,936 patents were granted in India which is considerably low as compared to 354,430 and 452,804 patents granted in the US and China respectively,” the report reads.

Similarly, the number of patent applications is no better with only 56,284 filed in 2019 compared to 621,453 in the US and 1.4 million in China.

The data for 2020 and 2021 is not yet available on the patent office’s website.

Thus, on one hand we have business for generics soaring, and on the other, unsatisfactory patent filing and registration figures in the country.

Tipping the scale slightly in favour of innovators without jeopardising the major safeguards in place for consumers and generics might just be what India needs for boosting innovation and ensuring access to cutting-edge technology.

The first step in this direction would be to identify the systemic and legislative changes needed to encourage patenting in India.

Multi-pronged changes

To start with, there is neither much focus on, nor enough incentives for, R&D activities in India. This deters innovation and, consequently, patent filing at the domestic level.

The government needs to do quite a lot in terms of capacity building and investing resources to encourage innovation within the country.

The first step should be increasing its gross expenditure on R&D in line with steps taken by the top economies of the world.

As far as the Patents Act is concerned, the much-debated and broadly worded Section 3 – which excludes several inventions and discoveries from patentability – has long been considered the greatest deterrent for innovators. The section is commonly relied upon by examiners to object to or reject patent applications.

Inventors often do not file applications in view of this provision as the chances of success are remote due to the blanket restrictions imposed by it.

The section needs to be reconstructed completely to cover the headway made in the domains of life sciences, artificial intelligence, computer software, blockchain and other technologies. Broad clauses imposing blanket restrictions defeat the purpose of having legislation for protecting innovations.

There are other provisions that unnecessarily burden an applicant or a registrant with providing irrelevant information, limit amendment of already filed applications, and delay prosecution of patents. These provisions must be revamped as well.

Lastly, there is a need for fixing procedural shortcomings to ensure ease of patent registration. The patent office is currently understaffed in terms of the number of examiners. The issue must be addressed with immediate hiring to fill the vacant positions and by increasing the sanctioned number of examiners.

Also, examiners must understand that the degree of inventiveness will vary in different industries, with mature ones more likely to have incremental inventions than newer spaces. A one-size-fits-all standard of inventiveness cannot be applied to patent applications.

Adding to the plight of inventors, the patent office often grants patents close to the expiry of their term. Thus, there is a definite need to consider including provisions for patent term extension and patent term adjustment, which are currently missing.

Hanging in the balance

A lot hinges on adequately balancing public interest against private rights and it is important not to rush these amendments as it might do more harm than good.

On multiple occasions the incumbent government has made its intention clear to introduce innovator-friendly provisions for drawing foreign investment, but has also faced criticism on that front.

Although the right intent might be there, the government is known for its knee-jerk reactions to issues rather than well-thought-out measures.

An example is the abolition of the Intellectual Property Appellate Board earlier this year without consulting stakeholders. It raised concerns about the future handling of technical matters.

India cannot afford an impulsive overhaul of the patent law. There is a definite need to consult both public welfare advocates and innovators before introducing any amendments.

A considered revision of the relevant provisions, coupled with enhanced infrastructure, resources and procedural ease, is most likely to incentivise innovation as well as serve public interest rather than impede it.

Statutory checks are already there for unfair competition and abuse of dominant position cases, and these can be strengthened instead of retaining blanket restrictions.

The Patents Act was last amended 16 years ago. With no free-form discussions announced yet, it won’t be surprising if we have to wait another few years before any amendment is introduced at all.

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