Mumbai: While India’s refusal to grant a patent to Novartis AG’s cancer drug Glivec grabbed headlines, the number of patents granted by India soared 125% in 2005-06 from the previous year, the last period for which official data is now available.
India’s four patent offices, in New Delhi, Kolkata, Mumbai and Chennai, together granted 4,320 patents in 2005-06 even as the number of patent examiners fell to 140 from 196 the previous year.
Some 24,505 patent applications were filed, of which 11,569 were examined.
According to the 2005-06 annual general report of the controller general of patents, designs and trademarks, there were only 161 oppositions in the year while the number of patent applications abandoned was comparatively less than in the previous years. Meanwhile, there was also a spurt in applications.
Some critics say the real reason for the spurt in patents is because Indian patent offices don’t yet have the infrastructure to publish detailed patent applications, either before or after examining them in detail, which reduces the opportunity to challenge the patent filings. Indian patent offices publish only abstracts of the claims in patent applications and often with a delay of several months before and after they have examined the application.
Even “the abstracts published by the patent offices are often the version that is filed by the applicant, who doesn’t want to make his claims public in a transparent manner,” complains Prathibha Shiva, a patent lawyer with the Mumbai-based Lawyers Collective. While “the law mandates the patent offices that they should provide information about the claims in patent applications with clarity before granting a patent, they often find ways to find excuses.”
“As the general instruction from the Department of Industrial Policies and Promotion, or Dipp, which is responsible for the country’s intellectual property rights relating to patents, designs and trade marks, is to grant patents as much as possible, there were several cases of patent grants even after the patent examiners raise objections to the claims,” said a senior official at one of the patent offices, who didn’t want to be identified.
Consider the example of a 2006 grant of a patent to the Swiss-drug maker F. Hoffmann-La Roche Ltd by the Chennai patent office. It was given despite objections reported by patent examiners under Section 25(d) of Indian patent law, which doesn’t allow patents for “inventions” that are known prior to the application, claims a former patent examiner who has worked in both the Delhi and Chennai patent offices but didn’t want to be named. “If there is a system which will mandate the patent offices to make the post-examination remarks in the patent applications public, several of the already granted patents will be subjected to litigation and consequent revocation.”
Indeed, Mumbai-based Indian drug maker Wockhardt Ltd now has a post-grant opposition pending against the Roche patent.
The same former patent examiner adds: “The patent examiners, who are currently working under pressure to clear more than 10 applications per month, are not provided adequate time to study the applications thoroughly as the applicants often come up with reply to their post-review queries at the last moment, within the limited time allotted to move the file to the controllers.”
“In several cases, the patent offices also do not entertain pre-grant oppositions by the opponents, giving vague reasons,” alleges Gopakumar Nair, a well regarded patent consultant in Mumbai.
Such a claim, where the opponents of Roche’s Valcyte patent allege they were not given a hearing, is now being probed at the Chennai patent office.
Responding to the complaints, the chief controller at Chennai patent office, V. Rangaswami, says: “It is not mandatory for the patent office to give a hearing if it finds that there is no merit in the opposition.”