India: Patent Law Developments In India

Last Updated: 24 October 2018
Article by Rajeev Kumar and Pankaj Musyuni

India has a well-established judicial system to work out an effective intellectual property (IP) ecosystem. Based on feedback from stakeholders, the government has taken several initiatives to create awareness and inculcate a culture of innovation in India. During the year, the IP offices have been radically transformed through numerous initiatives, which have contributed tremendously to the understanding of IP and easing the patenting system to make it more user-friendly. Some of the developments that happened in 2017 are discussed herein.

One of the significant achievements has been to conduct various awareness programmes to make IP-related issues understandable, and imparting knowledge to various sectors including universities, industries and the general public. The collaborations among the Indian Patent Office and industry associations like the Federation of Indian Chambers of Commerce & Industry (FICCI), the Confederation of Indian Industry (CII), the Associated Chambers of Commerce & Industry of India (ASSOCHAM) and PHD Chamber of Commerce & Industry (PHDCCI) to conduct awareness programmes and raising awareness levels of the public have been noteworthy in augmenting the IP ecosystem. In this regard, the Modernization and Strengthening of Intellectual Property Office (MSIPO) scheme has been floated by the Department of Industrial Policy and Promotion (DIPP).

To further enable the participation and utilization of the IP ecosystem, especially by small players like startups, the DIPP redefined the criteria for companies to qualify as a "startup", effective from 1 December 2017. The new definition even clarified the inclusion of foreign startups, and also increased the tenure of startups from five to seven years from the date of incorporation. The DIPP also considered the difficulties associated with biotech startups and increased the tenure to 10 years from the date of incorporation to avail startup facilities. Startups can avail various benefits under the patent regime, such as fast-track examination and a considerably reduced fee.

To develop the culture of innovation, initiatives have been taken at the international levels as well by the government of India. The DIPP and World Intellectual Property Organization (WIPO) have signed an agreement to establish Technology and Innovation Support Centres (TISCs) in India. The TISC programme provides innovators in developing countries access to locally based, high-quality technology information and related services, helping them to exploit their innovative potential and create, protect, and manage their IP Rights.

TISCs provide a number of services including access to online patent and non-patent resources and IP-related publications, assistance in searching and retrieving technology information, training in the database search, on-demand search, monitoring technology and competitors, basic information on industry laws, property laws, management and strategy, technology commercialization and marketing.

This is seen to be a positive step to enable Indian startups to become better informed about IPR and taking proactive steps to protect and monetize them. Under this programme, the first TISC was set up in Chandigarh, Punjab with the Punjab State Council of Science and Technology, in July 2017. At present, there are two more TISCs – the Centre for Intellectual Property Rights, Anna University at Chennai in Tamil Nadu, and the Intellectual Property Facilitation Centre, National Research Development Corporation at Vishakhapatnam in Andhra Pradesh.

The Indian IP Office has also been taking commendable initiatives in partnering with IP stakeholders to augment the IP experience in India. Under the initiative of partnering with IP stakeholders, the IP office has been conducting interactive meetings with stakeholders. At the stakeholders' meeting with Startups Intellectual Property Protection (SIPP), held on 7 December 2017, issues pertaining to the procedures were discussed and for smooth functioning of the system various significant changes were initiated and accepted by the Controller General of Patents, Designs and Trademarks (CGPDTM) including: automation for the intimation of the publication of patent applications via email and SMS alert; updating email IDs on a routine basis; SMS alert services initiated for critical due dates such as request for examination, reply to First Examination Reports (FERs), and renewal filings and form 27.

The Patent Office also took initiatives to clear the backlog and stuck cases by undertaking to cross-check very old patent cases where the FER had not been issued. Old cases were expected to be taken up for disposal on priority. Timelines were also to be set for issuance of the decision after the hearing is conducted and written submissions are filed. The year also witnessed efficiencies in processing including uniformity and consistency of patent applications, and substantial improvements in the procedure for filing and prosecution. It is pertinent to mention that some steps, such as the weekly release of FER data, issuance of bilingual FERs, and issuance of online letters patent document (LPD), have already been taken care of by the CGPDTM.

The Patent Office has also been developing examination guidelines in different technology areas, and, based on the stakeholder's feedback, revised the guidelines for computer-related inventions in June 2017. The revised guidelines were significant for patent applicants since the revision involved the removal of the requirement that software patents can be claimed only in conjunction with novel hardware.

There were also some notable judicial developments in 2017, one of which was related to the "Bolar provision". In a significant development, in March 2017 the Delhi High Court in the matter of writ petition Bayer Corporation v Union of India & Anr and a lawsuit filed in Bayer Intellectual Property GMBH & Anr v Alembic Pharmaceuticals Ltd conjointly, considered the legal question of interpretation of section 107A(a) of the Patents Act. The court held, inter alia, that the language of section 107A of the act permits exports from India of a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product, and that no suit prohibiting export per se of a patented invention can lie. The Court also held that the grant of a compulsory licence would not come in the way of the licensee exercising its rights under section 107A(a) as a non-patentee. The decision has been assailed by Bayer before the Division Bench, and the matter is still under consideration.

Recent developments in the field of patent law have been diversified in nature in India. The Indian patent system is continually evolving to provide seamless services to its users by utilizing and implementing digital technology. Significant efforts like reduced examination timelines and other improvement steps such as an efficient filing system for applicants show the patent system is improving in relation to both prosecution and enforcement. As the patent office is also trying to simplify and clarify various procedures, this is an exciting time to witness the many more significant and positive developments in the near future for the Indian IP ecosystem.

Originally published by Asia Business Law Journal

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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Authors
Rajeev Kumar
Pankaj Musyuni
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