Patent Regime in India: A Contemporary Insight

October 12, 2017by S.L.Soujanya0

The basic anatomy for the enforcement of intellectual property legislations for India and countries across the world was provided by The General Agreement on Trade and Tariffs [GATT] of 1995, which gave rise to the Trade related intellectual property rights (TRIPS) regime. Additionally, over a decade of efforts to make the domestic legislation compliant with the TRIPS regime as also to cater for the changing socio-economic scenario and a rapid growth in entrepreneurship, have resulted in various legislations being enacted to make India’s IPR regime more efficient and responsive. The Indian patent system is well established from legal, judicial, and administrative point of view.

In this direction, the Government of India chose to look for a larger canvas with the introduction of the first ever National Intellectual Property Rights Policy in the year 2016. The crux of this policy was to enable ease of doing business in India and to ensure effective law enforcement. The Mission Statement of the policy spoke of the objective of encouraging creativity and innovation by promoting entrepreneurship and a focus on enhancing access to health care, food security, environmental protection, and emphasis on other sectors of vital socio-economic and technological importance. The importance of the Policy was also on creating public awareness on the importance of protecting one’s ideas. This stands necessary as India is considered as one of the ‘intellectually rich’ countries in the world, in terms of potential for innovation and research. Importance has also been given in the Policy for expediting the process of examination of patent application to encourage more patent application filings and speedier grant of patents.

With this in mind, efforts are made annually to incorporate changes in the form of patent amendment rules by the nodal authority for patents in India – the Department of Industrial Policy and Promotion [DIPP], under the Ministry of commerce and Industry. The introduction of Patent Amendment Rules, 2016 saw the inception of landmark guidelines based on suggestions received from the people working in the area of patents.  The amended rules endeavoured to reduce the duration require for processing of patent applications and to grant maximum permissible benefits to the applicants.

Some significant amendments introduced in 2016 include:

  • Reduction in the timeline for filing the first examination report; a refund of up to 90% of examination fees, if the applicant opts to withdraw the application before the issuance of the first examination report without a fee such withdrawal.
  • A PCT applicant with the Indian patent office, being nominated as the examination office, can file a request for expedited examination.
  • A new entity referred to as a “start-up” has been identified to encourage innovation within the start-up, with certain fringe benefits viz. the Start-ups Intellectual Property Protection (SIPP) scheme by the DIPP has been extended for 3 years till March 2020, to help entrepreneurs protect their patents, trademark and designs.
  • The start-ups have also been entitled for tax benefits and the fees for filing patent applications have been kept at a lower end for them. Extensive computerisation and automation has been implemented for speedier disposal of applications and examination process which saw an increase of 52.80% of receipt of request for examinations.
  • A new numbering system compatible with IP offices around the world has been a significant move.

An overview of the effectiveness of the existing patent regime in India is detailed in the annual report by the Office of the Controller General of Patents, Designs, Trade Marks, and Geographical Indicators [CGPDTM]. The trend in the last five years show a surge in the foreign applications filed with the Indian office. The Indian patent office, functioning as an International Search Authority and International Preliminary Search Authority, is seen as a milestone globally. Majority of foreign filing applications were filed through the PCT national phase entry route. The foreign applications saw an increase of 10% in filing. This explains an increasing faith of the foreign applicants towards the Indian patent regime as well as potential in India for commercialising their patents. An increase of 16% in the number of convention applications filed in comparison to the previous financial year. About 711 applications were received by the Indian patent office under the capacity of International Search Authority. With reference to granted patents, out of 6,326 patents granted in the 2015-16, the foreign applications which were granted patent were 5,408 (85.4%), and the Indian applications which were granted were 918 (14.6%).

GRANTED APPLICATIONS (Source IPO Annual Report 2015-16)

It is further stated that, more than 600 foreign applicants were granted patents in the year 2015-16, a considerable increase over the previous years.  The CRI guidelines for the year 2017 came into effect from June 30th, 2017 which has clarified aspects pertaining to sec 3(k) of the Indian Patents Act, 1970 – where computer programs “per se” fall under the non- patentable category. The new guidelines emphasise on proper construction of the claims, as in the actual combination (with the corresponding hardware), which in the proposed software invention should be identifiable. This has brought clarity amongst the applicants about the present ability aspects of the software patents. This encourages the foreign applicants to file for software patents. The TRIPS regime had given India (under the category of developing nations), a 10 year window (1995-2005) to synchronise its IPR laws with the TRIPS. Accordingly, the IPR regime in India has seen enormous changes, which have generally followed the path of improvisation. The diversity in the applications filed – from the fields of biochemistry, biotechnology, bio-medical engineering, chemistry, civil engineering as well as physics, metallurgical, pharmaceuticals and textiles – reflects the flexibility and ability of the India’s IPR regime to accommodate different kinds of innovations and though process.

The Indian patent office has ensured the participation of India in various worldwide domain conclaves and meets by its presence. This has ensured the representation of India on the world platform, thus, bringing India’s IP regime to the notice of inventors’ abroad as well as exposing it to the dynamic IP regimes across the globe.

S.L.Soujanya

S.L.Soujanya

Ms. S.L. Soujanya is a registered Patent agent with an academic background in Pharmaceutical sciences. She holds a Bachelor’s degree in Pharmacy from the Osmania University, Hyderabad and holds a Post Graduate Diploma in Intellectual Property Rights Law from NLSIU, Bangalore.

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Telangana, India.
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