Mumbai: The number of patent grants has almost doubled every year since 2005, when the country enacted a new intellectual property (IP) law, but only a fraction of these have been commercialized.
Of the 37,334 patents granted and enforced by the Indian patent office till March 2010, only 4,189 have been commercially introduced in the country, according to the Indian IP office’s latest annual report.
This means the holders of almost 90% of these patents were either not successful in bringing their inventions to the market or they just blocked the entry of similar products or technologies using their patent rights.
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Since a patent is granted to inventions only if they are commercially usable for the benefit of end consumers including the general public, industries and institutions, not bringing it into the market is an abuse of a key legal right.
In other words, Indian consumers are deprived of these patented technologies or products monopolized by way of IP rights, though the country has provisions in the law to give compulsory licences of such patents to other parties.
India’s compulsory licensing law allows patent holders three years from the date of grant of the patent to prove their patents are commercially working. Working of a patent mainly denotes the availability and accessibility of a product or technology using this patented invention to the end-user.
Patent grants are rising despite the patent office facing problems including shortage of people and poor data search facilities. In 2004-05, the patent office granted 1,911 patents with a staff of 150 examiners and 20 assistant controllers. In the next two years, the grants jumped to 7,539 and 16,061, respectively, while the staff strength declined.
As on March, India had about 40,000 patents in force, though the official numbers are yet to be released by the patent office, which publishes its annual report with at least a year’s lag.
“We understand that there are several defensive patents, which are not exactly meant for commercialization, but to protect the inventors’ ongoing research work as well as existing product portfolio from rivals. These are mainly by technology companies in the area of telecom and information technology,” said Prashant Reddy, an IP lawyer who first blogged on these annual report numbers in Spicy IP on Tuesday.
“It is surprising that there are hardly any compulsory licensing happening especially in the drugs and other essential fields despite the huge number of non-working patents,” he added.
An executive with a multinational drug maker, who did not want to be identified, said not finding potential commercial partners for launching products is a key issue for many inventors.
India’s patent office does not have a regular system of updating the details of the working status of patents for the public. So it is not easy for interested parties to approach the government (the patent office in this case) seeking compulsory licences.
Though at least 3,500 patents were granted on drugs and pharmaceutical products since the reintroduction of drug patents in India in 2005, fewer than 100 patented drugs are being sold in the local market.
Under Indian law, patent holders are required to file the details of the working status of their patents to the patent office every year. But enforcement of this law is weak.
As a result, even the government does not have adequate data on the working details of the patents granted. The government has the power to allow third parties to use inventions without seeking the permission of the patent holder in emergency situations.
In 2009, the IP office had insisted that patent holders should compulsorily file these details. Controller general of patents, designs and trademarks P.H. Kurian said in an interview in May that the patent office will put up these details on its website from June.
Kurian was not available for comments. An official from his office said the compilation of data filed by patent holders is in progress and the working details will be put in the public domain.
Graphic by Yogesh Kumar/Mint