bridge-over-maze-illustration
1 May 2013PatentsRanjan Narula

Current challenges to IP and their possible solution

Current major IP challenges include the backlog of applications at the Indian Patent Office (IPO), in particular the inordinate delays in examining applications, registering trademark and granting patents.

Infringement cases in court take several years to conclude. There is no special court or bench that hears IP infringement cases. As a result, there can be conflicting views on the same issues, resulting in appeals to higher courts. This further adds to delays.

In the life sciences and pharmaceutical industries, what can be patented and what needs to be shown to meet the requirements of ‘inventive step’ is debatable, and balancing the public interest and IP owners’ interests is also a challenge.

What is being done to deal with the challenges?

An online, automated database has been created by the IPO, allowing the automated filing of applications and enabling several steps in the prosecution process to be carried out through an online portal. The online database has brought more clarity and transparency with respect to the workings of the IPO.

A special drive to clear the backlog of opposition cases has been started, and there is a drive to clear pending requests to change names, assignment and merger details, and other post-registration changes on applications.

Certain Indian high courts are appointing retired judges to act as commissioners to record evidence, as part of an attempt to expedite trials. Mediation centres have been set up to resolve the cases and are helping to clear the backlog and resolve cases earlier.

The public interest in relation to affordability and accessibility of medicines is an emotive issue. The current trend of court decisions indicates that the public interest is prioritised over IP rights.

Is the recent controversy over compulsory licensing a problem for India? If so, what is the best solution?

As a large proportion of the Indian population lives below the poverty line, the thinking of courts and other quasi-judicial authorities has been that patent owners cannot simply ignore the public interest. IP rights owned need to support or harmonise the affordability and availability of medicines and other inventions.

In my view, it is not a problem but a reality that needs to be taken on board by the patentee. At the same time, the courts and other law enforcement authorities must recognise that a strong and balanced IP rights regime encourages both domestic innovation and knowledge diffusion through IP protection, international trade and technology transfer. The solution lies in striking a balance between the two schools of thoughts. The government can play role of mediator in balancing the interest of the parties.

What are the key weaknesses of IP enforcement in India, and how can they be rectified?

Problems include:

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk