Mumbai: India, which has usually been miserly in granting patents, has suddenly started issuing more of them. In the first three quarters of this fiscal, the country’s patent offices issued some 10,130 patents, more than double the annual number they granted just two years ago.
The country, which has one of the most stringent patenting regimes in the world after Japan and Germany, has been granting an average 50 patents a day. This rate is comparable to the patent grants made in advanced intellectual property regimes such as the US and the EU when measured as a proportion of patents granted to the number of applications made.
The four patent offices in India granted 10,132 patents between April and December 2007, a period in which they received about 30,000 applications. In the 12 months ended March, the numbers were 7,500 out of 29,000, and in 2005-06, the offices issued 4,320 patents after receiving 24,415 applications.
PATENTS RUSH (Graphic)
In 2006, the latest year for which data is available, the European patent office granted 62,780 patents out of 135,183 applications, and in the US, 173,771 patents were allowed from 425,967 applications.
The surge in patent issuances, as shown by data compiled by Mint from weekly journals of the Indian patent office, is a result of clearing a backlog of patent filings, some of which date back to the last amendments made in 2005 to the Indian Patents Act. Also, according to officials at patent offices in the country, an unusual jump in applications from the food and drug sector and a smaller number of rejections in the three quarters of fiscal 2008 have increased patent grants to a record.
Hindustan Unilever Ltd, India’s largest consumer products company by revenues, secured the highest number of grants with 391 patents. Auto maker Honda Motor Co. Ltd and Korean consumer electronics firm Samsung Electronics Ltd have been granted 252 and 211 patents, respectively, between January and December 2007.
The increase in the number of patents granted comes at a time when the infrastructure, staffing and processes at the country’s four patent offices have come under critical scrutiny. The Union ministry of industry and commerce agreed that there is an overload on the patents grant system in India. A recent report by the government’s department of industrial policy and promotion, which oversees patent matters in India, said: “The average number of examinations handled by an examiner at Indian patent offices is 100 per annum compared with 50-80 cases in the US and Europe.”
The sharp increase in patent grants also comes at a time when the number of patent litigations have shot up dramatically, leading to criticism that patent offices here do not scrutinize applications carefully and a large number of unsubstantiated claims receive protection. Patent offices in India have been widely criticized for poor infrastructure to publish detailed patent applications, which reduces the opportunity to challenge the filings.
A recent instance where patent grants were issued by two different patent offices for a water purifier technology to two firms, Hindustan Unilever and consumer goods company Eureka Forbes, is one example of controversial patent grants in India. Around 25 court cases against various drug patents were filed in the past year.
India has two unique provisions in its patent law—pre-grant and post-grant opposition—to encourage oppositions to unsubstantiated patent claims, but these provisions have not been widely used. There have been just 87 and 127 pre- and post-grant challenges in 2005-06 and 2006-07, years when 4,320 and 7.500 patents were granted.
Currently, Indian patent offices publish only abstracts of the claims made in patent applications and often with a delay of several months. While “the law mandates that the patent offices should provide information about the claims in patent applications with clarity before granting a patent, they often find excuses to flout this,” says Chan Park, a senior technical and policy adviser at the Mumbai-based Lawyers Collective, a non-governmental organization that files public interest litigations in areas such as patients’ access to drugs.
One expert said the processes at the patent offices were already robust. “Currently, the patent offices have a very strict scrutiny of patent documents and the examiners are much more efficient to analyse the claims. There are hardly any frivolous patents granted in the country,” said Mohan Dewan, a leading patent attorney at RK Dewan & Co., a Mumbai law firm which has represented multinational drug firms in the past.
But a patent examiner at the Kolkata patent office, who didn’t want to be named, said there was pressure lately to study filings. “The average workload on individual patent examiners is much more now, and also the stipulated time for completing examination process has become comparatively short,” he said. India has a total of 136 patent examiners in its four patent offices.
Another official at the Mumbai patent office, who preferred anonymity, said there are often cases of wrong analysis of scientific claims made in patents “since Indian patent offices do not have the people capacity to assign specialized examiners to sector-wise applications.” Further, with the absence of efficient global patent search facilities available in Indian patent offices, he said, “the examiners do not have access to global patent information, which results in granting patents to technologies and claims already known in foreign countries.”
Acknowledging this shortcoming, India’s Knowledge Commission had recently suggested to the government that Indian patent offices be provided with access to international databases on patents. It had also suggested more transparency be brought into the system.
Pointing out the lack of transparency at Indian patent offices, Shamnad Basheer, a global patent expert and an associate at Oxford Intellectual Property Research Centre, said: “The decisions at these departments, which still do not have a fully transparent process mechanism in place, can easily be influenced by applicants and corrupted officials.” Also, Basheer, who wrote to the prime minister to ensure a transparent patent system, said the system as it was structured today discouraged patent examiners from rejecting patent applications because “rejections invite more troubles to patent office as they have to explain the reason.”