The Indian patent regime is yet to acquire full credibility although the country has in place a stringent patent law that conforms largely, if not wholly, to global norms and is compatible with the trade-related intellectual property rights (TRIPs) accord hammered out as part of the Uruguay Round of trade negotiations. The problem is not the law, but the manner in which the patents office works. The charges range from the grant of frivolous patents to favouritism and outright corruption. No proper assessment has been made about whether these charges are warranted, but there is rarely smoke without some fire. There are instances of patent protection being allowed to non-patentable basic materials like salts, metabolites, polymorphs and the like, besides of course protection given to minor modifications of already patented products. It is said as a consequence that more patents are granted in India every year than the number of new inventions or new chemical entities developed. Dissatisfaction also prevails on account of the procedure used to examine patent applications and insufficient transparency in the process of granting or rejecting patents. These issues gained traction when National Knowledge Commission Chairman Sam Pitroda drew the Prime Minister’s attention and put out a long list of suggestions to set things right. Mr Pitroda’s views were endorsed by about 150 intellectuals. Since then, the patents office has taken several steps to make amends, but a good deal still needs to be done to inspire confidence among users.
One of the fundamental problems with the patents office is the dearth of patents examiners— the result of a high rate of attrition. Those well versed in the task are in great demand by patent attorneys and by private sector firms. Recent reports say that while the number of patent applications grew 20 per cent in 2008, to 35,000, the number of patent examiners dropped from 150 to 115. Burdened with a heavy work load (300 applications to be processed in a year by each examiner), even the most competent official will fall short of expectations. And the harsh truth is that skilled and qualified personnel are not available in the numbers required, nor is there the infrastructure for training them to build their legal and technological capacity in a field that is admittedly complex. The requirement that examiners need to be thorough and up-to-date in frontline sciences, such as bio-technology and bio-informatics, makes regular skill upgradation through training critical. These issues need to be addressed urgently to handle the increasing work load, to ensure that only deserving new products get patent protection and to prevent ever-greening.
What can and should be done is to impart greater transparency to the patent granting process and enhance the scope for well-informed pre-grant challenge as well as post-grant audit. Information pertaining to the claims made in an application should be placed in the public domain in a more complete manner. Often, it is the abstracts appended by the applicants themselves— and not those based on critical examination— that are revealed for the purpose of pre-grant objections. There is need also for full disclosure of the comments made by examiners on a patent application, and the reasons for granting or rejecting the patent. It is important to address these issues because patenting can be, and has been, used as a non-tariff barrier, and will increasingly be a contentious area for two reasons: international companies taking the Indian market more seriously, and Indian companies seeking to build technology-driven businesses.