Mumbai: India’s intellectual property rights (IPR) regime, despite a stricter policy framework, has been widely criticized for quality of patents and trademarks granted in the backdrop of rising instances of litigations and opposition to such grants.
Though unfair practices and favouritism have been prime targets of the critics, a recent analysis by Mint of a few key operational factors reveals that a quantity-linked work assessment mechanism is yet another reason behind the deterioration in quality of work.
The analysis, based on comparative workload and employment conditions among international patent offices, shows that the Indian patent office has the highest number of per-capita workload delivered at the lowest pay.
An Indian patent examiner handles at least 20 applications a month. In contrast, it is less than seven by an examiner in the European patent office and eight in the US.
Even in China, the number of applications verified by a patent examiner is only seven a month.
An Indian examiner’s monthly salary and other incentives at Rs 35,000-40,000 is the lowest and less than a third of her counterpart in foreign patent offices even after taking into consideration the purchase power parity.
Indian patent examiners’ counterparts in the US and Europe draw a monthly salary equivalent to Rs 20 lakh and Rs 18 lakh, respectively.
Patent examiners are essentially scientific or technical professionals and they play a critical role in deciding patentability of claims made by applicants.
“We have been working for the office for more than seven years and in return we have not got a single promotion or pay scale upgradation. We come to the office with shoulders down, and curse through the day,” says a patent examiner, who doesn’t want to be identified due to confidentiality reasons.
The huge workload of Indian patent examiners has also been confirmed by a parliamentary standing committee.
A report prepared by the department-related parliamentary standing committee on commerce, or the 88th report on patents and trademarks presented to Rajya Sabha in October 2008, which proposed to bring the patent examination standards up to international norms, said a patent examiner currently handles 214 applications every year in India. The corresponding figure in European Patent Office is 90, United States Patent Trade Office, 97 and China, 88.
The department wants to fix the norm at 100 applications an examiner per annum.
Since there is no performance-linked incentives, majority of patent examiners interviewed by Mint in the four patent offices located in Kolkata, New Delhi, Mumbai and Chennai, expressed strong dissatisfaction in work and admit that close look at the claims in the applications are not often followed.
“Unlike other scientific organizations such as Defence Research and Development Organisation, Centre for Scientific and Industrial Research (CISR), etc., under the Central government, patent offices do not have the performance-linked growth opportunities. As a result, many of my batchmates do currently hold higher positions and monetary benefits in other organizations,” says another examiner.
A former patent examiner, who joined a scientific organization after quitting patent office, says patent examination logics were often ignored in Indian patent offices and hence the quality of grants suffered.
“Patent examiners were allotted some 20 applications a month, and some of them would have at least 50 inventive claims. I had once fought with my superior as it was impossible to handle all applications as one of them alone had 700 pages and more than 50 claims, ” says R.S. Praveen Raj, scientist, IP management and technology transfer at National Institute for Interdisciplinary Science and Technology, a CSIR institution. “If I do a thorough scrutiny of this, others will suffer and I didn’t want it to happen.”
Raj was formerly an examiner of patents and designs, at Indian Patent Office, Chennai.
The administration recognises some of these issues.
P.H. Kurian, controller general of patents, designs and trademarks, said: “The opportunity for performance-linked promotions in every four years as followed in other scientific organizations is not there...and this is being considered. But the workload is currently not as bad as what is projected.”
The work pressure at the Indian patent office leads to high attrition as well.
The incentive to stay at the office and perform a high-quality examination is related to employment conditions, states a May report prepared by a Belgian professor and a noted patent expert, Bruno van Pottelsberghe de la Potterie, of Solvay Brussles of Economic and Management.
This paper alerts that lower standards (diluted scrutiny and poor quality of examination) in patent grants induce more applications, because it is easier to get a patent granted.
“A vicious cycle therefore arises in which lax patent standards, as examiners become overloaded,” it said.
From 2005, when India started its new patent regime under the World Trade Organization’s Trade Related Intellectual Property Rights provision, patent and trade marks applications at its IPR offices have increased multifold. But the employee strength to examine them has drastically come down.
Currently, Indian patent offices have137 examiners.
The parliamentary standing committee working paper projects that by 2012, a total of 70,000 patent applications are expected to be filed annually. To meet this workload, 1,380 posts are proposed to be created, including 617 examiners, 157 controller for patents and designs and 53 registrars for trademarks.