India: An Ode To The Odyssey That Is Patent

Last Updated: 4 September 2019
Article by Isha Tiwari

India is, in the true sense of the phrase, a "rising star" when it comes to innovation growth in the Intellectual Property sector. Economic solidification of a country rests on several pillars, of which, policy making is the foundation. Developing countries such as ours have come a long way since the ratification of the WIPO Treaty in 1995, which effectuated separate legislations for the regulation of patent, copyright, and trademark, leading to entrepreneurial spurt. This achievement through guaranteed strong IP protection and sustained economic advancement has equipped India to rise to the 36th Rank in the US Chambers of Commerce's Intellectual Property Index (2019)1.

 With the advent of WIPO, a surge of applications was observed in the Patent Cooperation Treaty, Madrid System (Trademarks) and the Hague System (Designs); with patents observing an all-time highof253,000 applications in 2018, showcasing a steady increase of 3.7% since the previous year2. Lead by US; India and China were the only two Asian countries amongst the top-15. Even though India saw a 27.3% rise that year, China's applications surpassed India by several yardsticks, where India saw around 2,000 filings compared to China's 53,345 applications.

It is quite evident that China single-handedly leads Asia to dominatethe patent pool whileIndia's contribution is drop-sized. Besides receiving few applications, the Indian Patent Offices are infamous for fewer grants. Specifically talking, trademarks see the highest success rate of being granted.According to WIPO in 2017, trademarks saw a whopping quarter of a million applications (271, 972) including Resident and Abroad based while patents recorded 27,985 applications3. Surpassing a 6% grant rate, 2017 saw 1,712 successful grants, which were the third highest in a decade. Interestingly Non-Residential filings received were 31,621 in the same year, twice of domestic filings with a third of them being granted (10,675)4.

 Numerous factors play a role in the granting of a patent, which range from strict pre-requisites such as novelty, industrial applicabilityto steep filing and examination fees. Moreover, the requirement of a patent agent is crucial for legal compliances. Besides the bifurcation between e-filing and physical, fees aredifferent for an individual inventor, a start-up and a company, includingfees deferring based on the number of claims and pages in the specification. Costs range easily from Rs.40, 000 – 60,000, going up to one lac in case of a company. Request for examination can cost anywhere between Rs.4,000 to Rs. 30,000. For any patentee it is crucial that the patent is granted as soon as possible and is protected for the longest duration. Renewal costs can increase 3-5 times depending on the year in which the renewal is sought5. Thereby, making patents one of the most expensive yet sought-after rights.

Grants are fewer in comparison to other IP rights since processing of an application itself is lengthy,  with complete specification having a filing window of 12 months since provisional specification. This is followed by publication of application and requesting for examination by Expert. After considerable amount of time and investments, the plight of applicants isn't over for is not uncommon for applications to get  flagged at this stage. The public database is thoroughly searched for prior inventions, and even patentis granted, provision for further opposition can swindle the fate of an applicant.Hence, drafting of application is crucialfor a prospective patentee.

Expertise in describing the specifications of a prospective invention such as drawings, sketches, and diagrams besides the claims is a tedious task, which is where a patent agent's significance comes into play. Seldom applicants are competent to describe the technical aspects without circumventing the legal provisions.  Professional patent agents/attorneys charge a hefty fees, which could go up to Rs. 50,000for drafting and conducting a prior novelty search for their clients6. Selecting the right patent agent is like selecting the right shoe, it is imperative it fits according to our comfort and convenience.

Recently emphasised in an article by Carlo Cotrone, one can witness in a satirical way, the sour relationship between a client and his IP attorney7. Aptly put across, the one-sided efforts, lack of initiative and a constant wait for the other shoe to drop is bound to repulse a client. In spite of filing over 2,000 applications last year, the success rate dwindles in single digits. Moreover, top applicants are scientific and pharmaceutical organisations who can afford to dispose of patent agents as per their whims. Nonetheless it is crucial that individual inventors are given the right guidance, with the support of updated governmental policiesto secure their hard work and money in this odyssey of patent grant.For the importance of innovation cannot be undermined in this day and age. Uniqueness inspires and drives millions to turn their ideas into inventions, thus, helping our nation grow asthe next superpower.

Footnote

1 U.S. Chamber Releases 2019 International IP Index; "www.uschamber.com";https://www.uschamber.com/press-release/us-chamber-releases-2019-international-ip-index; accessed on August 12, 2019

2 WIPO 2018 IP Services: Innovators File Record Number of International Patent Applications, With Asia Now Leading;" http://www.wipo.int"; https://www.wipo.int/pressroom/en/articles/2019/article_0004.html; accessed on August 12, 2019

3 Country Statistical Profile: India;"www.wipo.int"; https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=IN; accessed on August 12, 2019

4 Ibid

5 First Schedule – Indian Patents Act, 1970 (PDF); "www.ipindia.com"; http://www.ipindia.nic.in/writereaddata/Portal/IPOFormUpload/1_11_1/Fees.pdf; accessed on August 13, 2014

6 Karhad, Prasad; "What is cost of patent registration in India?"; "www.patentindia.com";https://patentinindia.com/cost-patent-registration-india/; accessed on August 13, 2019

7 Cotrone, Carlo, "Dear Law Firm: An IP Client's (Satirical) 'Love' Letter"; "http://www.ipwatchdog.com"; https://www.ipwatchdog.com/2019/07/26/dear-law-firm-ip-clients-satirical-love-letter/id=111266/; accessed on August 13, 2019

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