Dual SIM dispute highlights flaws in India’s patent process

Dual SIM dispute highlights flaws in India’s patent process
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First Published: Mon, Jul 20 2009. 11 27 PM IST
Updated: Mon, Jul 20 2009. 11 27 PM IST
Mumbai: A series of decisions by India’s courts and patent tribunal on a patent granted in 2008 by the Chennai patent office for a dual SIM (subscriber identity module) mobile phone has once again highlighted gaps in the patent process in the country, escalating a debate about transparency in patent offices.
The case, which pits patent-holder S. Ramkumar, a Madurai-based electronics engineer, against mobile phone companies and importers, came to a head last week when the Madras high court passed an interim order, staying a decision by the Intellectual Properties Appellate Board (Ipab) to set aside the operation of the patent while it decided its validity.
Patent experts said they were surprised that Ipab passed an interim order instead of deciding the patent’s validity. The Madras high court set aside the order on the grounds that Ipab does not have powers to suspend a patent.
The court had earlier also stayed orders by the Mumbai and Chennai customs commissioners, that there had been no infringement of the patent by mobile phone importers, on the grounds that such a decision was outside their jurisdiction.
The patent grant caught India’s mobile phone industry unawares, particularly when Ramkumar sought to stop the manufacture of such phones in the country, as well as the seizure of any imported consignments.
Following his application to customs authorities across the country asking them to seize such phones under Intellectual Property Rights (imported goods) Enforcement Rules, several consignments were held back at Mumbai, Chennai and New Delhi airports.
Mobile phone manufacturers and importers, including Samsung Electronics India Pvt. Ltd, Spice Mobiles Ltd and Hansum India Ltd among others, argue that the patent was granted despite the technology having been in the public domain.
The dual SIM card was originally invented and patented by Siemens AG in the 1990s, and at least six similar technologies with incremental innovations have been used in the industry worldwide since, they add.
“Ramkumar does not even have a prototype of the product on which he has been granted a patent,” claimed Kunal Ahooja, chief executive officer of Spice Mobile, arguing that the patent shouldn’t have been granted in the first place as the patent holder has not proved the applicability of his technology in terms of use and commercial value.
A former official at the Chennai patent office, who was familiar with the examination process of the patent, said the application was initially turned down over concerns about novelty, and lack of adequate disclosure. “Later the applications was resubmitted with some changes and was examined by people with no domain knowledge,” he told Mint on condition of anonymity.
Mint couldn’t independently verify this person’s claim.
However, Chennai-based BFS Legal, a law firm that is representing Ramkumar, said all the claims in the patent have been adequately disclosed and that the technology is novel and certainlydifferent from other known ones.
“The technology that has been patented is a multiple SIM card mobile phone enabled with a simultaneous and parallel communication capability, which is new and invented by Ramkumar,” said a lawyer with BFS Legal.
“Having perused Ramkumar’s patent, I am of the personal view that he has not sufficiently disclosed his alleged invention,” said Shamnad Basheer, professor of intellectual property law at the University of National Juridical Sciences in Kolkata. “In fact, this very ground was taken up in the revocation petitions filed against Ramkumar’s patent before Ipab.”
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First Published: Mon, Jul 20 2009. 11 27 PM IST