Evolving Time in Indian IPR Regime

In this article, Prakash Kailasam, AVP, Intellectual Research Practice, Aranca, elucidates the IPR development in India over the past years.

Overall, there has been an increase in awareness of Intellectual Property across Indian pharmaceutical sectors, which is driven by recent changes in laws post 2005, litigations in some sectors such as Hi-tech, manufacturing, pharma etc. However, that is not translated into significant increase in patent filing as compared to other growing markets such as China and Korea.

Table 1 shows the number of patents filed with the Indian Patent Office (IPO) for the last five years.

Off the 43,674 patents filed in the year 2012-1013, 9911 (~23 per cent) applications were filed by Indian nationals/domestic corporations remaining 33,736 applications were filed by foreign nationals/companies. The number of patents filed in 2004 was 15,000.

However, the majority of filing with the Indian patent office still comes from MNCs. Filing by local companies has been in the range of 20 to 23 per cent annually for the last five years. Both the overall, filing and the domestic contribution needs to improve significantly.

Current Scenario

In the recent times, lot of Indian companies operating in global markets have realised the importance of IP and have started filing patents aggressively in their markets. For example, Infosys and TCS started filing patents in 2002-2003 and have filed over 400 and 200 patent applications respectively in the last five years with the United States Patent and Trademark Office (USPTO).

This indicates that few large Indian companies realise the importance of IP and gradually we might see other domestic companies filing patents globally in the key markets relevant for them.

At a policy level, India has quite a strong IPR framework and is comparable to major developed markets in Europe. At the implementation level, there is still room for improvement. For eg, patent pendency period or the time taken to grant a patent is still very high and the patent office is facing significant backlog. However, the IPO has recently taken initiatives to increase the number of examiners and has developed training programmes to increase the efficiency of the examiners. We are certainly going to see improvement in this area.

Table 2 shows the number of patents reviewed by the Indian patent office in the last five years.

There clearly is a major lag in terms of number of patents filed and number patents examined. Patent office has increased the number of examiners to 207 in 2013 from 79 in 2011. We certainly might see an increase in number of patents reviewed starting 2015 when the new examiners are well trained in reviewing of applications.

There are lots of initiatives by the government departments such as CSIR, DST, DBT to promote innovation in India. There are also programmes run by various departments to identify and promote activities around developing IP generation activities in the small and medium enterprises. The government could benefit by creating more awareness around these programmes and running structured campaigns to attract enterprises towards these schemes.

The number of patents filed has certainly reached post TRIPS compliance to 43674 in 2013 compared to ~15000 in 2004. However, this is far less than what was anticipated and also, the growth in filing has been very low as compared to other countries such as China, Korea where there has been a massive increase in filing in the last decade. For example, China has seen over 20 per cent growth in filing year on year in the last five years as compared to 1-2 per cent in India.

Indian government should look at ways of incentivising inventors and companies to file more patents, which could include offering rewards, tax breaks and also look at alternate forms of IP such as utility models, which are less expensive to file and have limited statutory requirements as compared to patents.

Contrary to the perception, Indian patent office has very clear and well defined rules when it comes to granting compulsory licenses. In the recent cases with IPAB, such as BDR Pharma vs BMS, there has been a thorough deliberation and fair hearing, before arriving at a decision.

Having a provision for Compulsory Licensing is essential in the socio-economic context of India and if a reasonable royalty is decided while taking into consideration all the investment done by the company in research, it will not hamper the process of innovation in pharma sector.

Global Trends

Globally, USA, China, EU, Japan and Korea are top five patent filing countries. In 2012, these four countries filed maximum number of applications for patents, globally.

There are lots of collaborative activities between the patent offices of these countries with respect to developing systems for faster review of patent application, coming up standardised classification systems for patents, work sharing framework. There are also ongoing discussions for harmonisation of IP laws across these countries.

EPO and Indian patent Office has a collaborative platform for training of examiners, knowledge sharing, access to databases etc.