India has seen a lot of chaos in the field of IP within the last decade. From amendments to draft amendments and propositions to impositions, IP in India has seen it all. In the past year alone we have witnessed 3 major amendments being proposed to the Patents Act and Rules and Trademark rules. Further, we have had several major discussions including discussions on the IPR policy for India, guidelines for examination of patents, software patents, etc.
The trend seems to continue this year with IP making the headlines almost every month. Where the government last year appeared to favor software patents, it did a complete about turn earlier this year. Much recently, DIPP published a paper to discuss on the subject of SEP’s or Standard Essential Patents. Somewhere between this, the DIPP also suggested revamping the working of the patent offices in order to make them more efficient in dealing with patent applications. It also took steps such as increasing the strength of examiners in numbers, tying up with institutes such as the IIT to fasten the process of patent grant, etc.
However, the government has this time faced serious criticism on two instances. The first includes a report of the governments private assurance to U.S. industry lobby groups that it would not use ‘compulsory licensing’ for commercial purposes, indicating that the Indian patent office won’t readily give out patents to domestic pharma companies for low cost generic versions of patented drugs. (This will be discussed in another forthcoming post). And the second instance involves the report that the government plans to allow U.S. – trained patent examiners to examine the patent applications filed with the Indian Patent office.
Section 3(d) has always been the bone of contention between US and India in the matter of Patents and IPR in general. The U.S. India Business Council (USIBC) that has been conducting training sessions for Indian patent examiners, reportedly receives funding from multinational pharmaceutical companies. There is therefore an apprehension that the training module is likely to orient the examiners to the line of thought of Big Pharma.
The decision of the government has invited harsh criticism from groups such as Médecins Sans Frontières (MSF) which suggest that the U.S. pharmaceutical industry, backed by the USTR, wants Indian authorities to relax their patent examination system and is now taking this to the next level by training the patent examiners.
However, we need to think beyond this and realize that the rate of patent grant in India is perhaps one of the slowest globally. As reported, a patent examiner of the Mumbai Patent Office in his response to the media has clearly indicated that the Indian examiners are trying to learn as much as they can from the senior examiners of the USPTO but have been asked not to compromise the Indian policy on Section 3(d). Several patent applicants have often expressed their displeasure with the speed and the efficiency of working of the IPO. It takes ages for a patent application to be examined, let alone be granted.
The quality of the examination reports have also been questioned on several instances. The patent office therefore not only lacks the numbers but also the expertise required to process the applications faster. The USPTO has one of the fastest and fairly reliable examination reports, if not fully accurate ones, therefore it only serves well that training with the USPTO examiners is in all likelihood for the greater good of the IPO examiners and ultimately the patent applicants. This is especially true for all the applicants who have been waiting for a long time now to have their patent applications examined with the IPO.
While MSF has the right to its concerns, we must see the bigger picture here. With good training, the patent office should be able to make up for what it lacks in numbers. Further, once these examiners become adept at examining the applications, future examiners can be trained in the same way. This would therefore only enhance the efficiency of the IPO.
Authored by Gaurav Mishra