India: Evolution Of Indian Patents Act And Rules– Journey From Trips Compliance To A Mature Patent Regime

The Patents Act, 1970, and the Patents Rules, 2003, have undergone number of changes in last one decade or so. The initial changes in the Act and corresponding Rules were mostly with a vision to make the Indian Patent Laws in conformity to the TRIPS guidelines with the allowed extent of exemptions. Later on, one can say that the focus of amendments moved towards making the procedure to apply for and grant of patent more transparent and swift.

 We will start with Patent (Amendment) Act, 2005, under which India adopted patent protection for new technologies especially in chemicals and pharmaceuticals in compliance with TRIPS agreement of the WTO. The said amendments with effect from 1-Jan-2005. Some of the salient features of the 2005 Patents amendments were:

1. One of the most important changes was that the earlier provision prohibiting product patent for food, medicine, drug and chemical processes was removed. In India with effect from 1st January 2005 product patent is available for medicine, drug, chemical processes and food.

2. "Mere new use or a known substance" was no more an invention as per Section 3(d) of the Act. In other words, if the applicant can substantiate that it is a new use for a known substance with some technical input such new use can be patented.

3. A computer program per se is not patentable but its "technical application to industry or a combination with hardware" is patentable.

4. If a patent application is field with a provisional specification, the complete specification is now required to be filed within 12 months of the date of filing. 5. The applications are examined only on a request for examination in a prescribed manner. Without a request, the patent applications would not be examined.

6. Provisions relating to Exclusive Marketing Rights (EMR) were removed. EMR provision was introduced in India in the year 1999 in compliance with TRIPS as product patent for drug and medicine was not available in the Indian Act. As product patents can now be granted for Drugs, medicines, food, and chemical processes the EMR provision has become redundant and has been repealed.

7. Provisions for pre-grant opposition and post-grant were introduced. After publication an before grant of patent, any person can make a representation to the Controller requesting him to refuse the application on the prescribed grounds. Further, after the grant of a patent but before the expiry of one year from the date of publication of grant, any person interested may give notice of opposition to the Controller.

After 2005, there have been several procedural changes including administration of patent prosecution and execution of work at IPO. Some of the major changes have been: digital access of WIPO data with respect to filing of PCT national phase applications, digitization of entire patent office records with each document from each application and patent being scanned and made available online, switching to e-Filing system except for original documentation, making emails as primary mode of communications, centralizing the examination of patent applications therefore distributing the huge load of pending applications amongst difference branches of IPO, hearings now being conducted through video conferencing, etc.

Another set of major amendments came in 2016 by way of The Patents (Amendment) Rules, 2016, which came into force on 16- May-2016. Key highlights of the amended Rules are:

i. Insertion of clause (fb) to Rule 2 defining a new category of applicant namely "Startup" which needs to pay a discounted official fee.

ii. Provision for expedited examination was introduced for cases where India has been elected as International Searching Authority or as International Preliminary Examination Authority; or, if the applicant is a Startup.

iii. Time for putting the application in order for grant is reduced from 1 year to 6 months.

iv. As per sub rule (6) of Rule 28, hearings may also be held through videoconferencing.

v. Provision of request for adjournment of a hearing is introduced, which shall be submitted with the prescribed official fee at least three days before the date of hearing.

vi. Applicant can now claim refund of 90% of examination fee before the issuance of an examination report in an application.

vii. Upper cap on official fee is defined w.r.t nucleotide sequence listing pages under Rule 9(3) to a maximum of INR 24000 [upto 150 pages].

With said sequence of changes, rather upgrades from the earlier processes, the Patent protection procedures in India are evolving for sure. When we compare the Patent Office practices of USA and European countries, we can definitely say that the Indian Patent Office have certainly covered the gap in leaps and bounds and are now considered as one of the pro-active Patent Offices of the world. Having said that, there is, and will always be, scope for improvements in making the process faster and further improve on the clarity in decision making, and transparency in procedure.

To talk in terms of evolution of Indian patent jurisprudence per se, we can safely say that the Indian patent law is mature and the same is considered amongst the "balanced" patent regimes when it comes to public rights versus the private rights. Indian patent laws have been regarded as standards by several developing nations because the same has the true mix of Patentee's exclusionist right along with reasonable restrictions and exceptions carved out for public necessities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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