New Reforms to Indian Patenting System

India is the fastest-growing knowledge-based economy, which continues to rely on the intellectual property leading to the production, distribution, and use of knowledge and information in driving productivity and economic growth. To match up with the global practices, India has amended its Patent Act and Rules time and again. In this line, recently at the ministerial conference, the Economic Advisory Council to the Prime Minister of India (EAC-PM) has suggested bringing new reforms to the Indian Patenting system. In the foregoing section, we are going to look at them in a more detailed manner.

Suggestions by EAC-PM:

To faster more innovation in India in line with its “Start-up India Scheme”, “Self-Reliant Scheme” and “Make in India Scheme” etc., there is a need to improve the Indian Patent regime, which is far behind the nations like the US, China, and Japan. In view of this EAC-PM has suggested the following:

  1. Hiring more Patent Officers:

Presently, India has only eight hundred and fifty-eight patent officers, with a backlog of 1,60,000 patent applications pending at the Indian Patent Office.

Hence hiring more patent officers would reduce the pendency at the IPO, and as result generate substantial revenue for the government, boost innovation in the country, and fast-track the process of granting patent applications.

  1. Adapting to technologies such as Artificial Intelligence to simplify the procedures at the Indian Patent Office, to become globally competitive.
  2. Putting six months’ timeline for pre-grant opposition proceedings – this suggestion would affect the substantial and procedural patent law of India.

Let us discuss more in detail the impact of this suggestion of EAC-PM by analyzing the present law relating to the Pre-Grant Opposition in India.

Pre-Grant Opposition

In the year 2005, the third amendment to the Indian Patent Act incorporated the provisions related to both pre-grant and post-grant opposition under Section 25(1) and Section 25(2) of the Indian Patent Act, respectively. Also, this is the only Patent Act, which provides an opportunity for opposition before the grant of the patent as well as after the patent is granted.

The object to include the pre-grant opposition in the Act is to give an opportunity to the opponents to oppose the grant of frivolous inventions and assist the Patent Office in learning about such facts about the invention, which might have been hidden by the patent applicant, whereby helping the patent officers in ascertaining the validity of the information disclosed in the patent application.

Who can file Pre- Grant Opposition?

As per Section 25(1) of the Indian Patent Act, “any person”, can file the pre-grant opposition. However, the term “any person” has not been defined anywhere in the patent act. For a detailed discussion on the interpretation of “any person”, we suggest checking this post.

Period to pre-grant opposition:

According to Section 25(1)[1] and Rule 55[2] of the Indian Patent Act & Rules, “anytime after the patent application is published but before its grant, any person may oppose the grant of a patent in Form-7A[3]”. Therefore, at present there is no specific period is provided to oppose the application before its grant. This gives a huge amount of time at the hand of the opponent which generally affects the delay in granting the patent application. Hence, the Economic Advisory Council has suggested providing a specific timeline to streamline the pre-grant opposition procedure to dispose of the patent application as early as possible.

Impact of the six months’ time period:

Firstly, to put a timeline for the pre-grant opposition, the Section 25(1) of the Indian Patents Act, which provides the provision of “anytime before filing” needs to be removed and to reflect the said six months period the Rule 55 of the Indian Patent Rules, 2003 (as amended) has to be amended.

Secondly, this timeline will reduce the time for granting a patent application in India to 58 months, whereas China and US have 20 months and Japan has 15 months to grant a patent application.

Thus, given the global scenario, where digital economy and knowledge-based economy are the new norms, India requires a competent IP framework with faster processing time. Only time will tell how things unfold in the future, but this change of putting a timeline to the pre-grant opposition will definably attract positive consideration from the big player in the industry and boost the innovation in the country.

[1] Opposition to the patent

[2] Opposition to the patent

[3] Representation for opposition to grant of patent

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