Sunday, 28 April 2013

The Indian patent law nurtures and promotes innovation

The evolution of patent system in India is not a natural choice of independent India unlike the drive towards investing in research and development, import substitution, indigenous development of know-how and adaptation of technology. India has had its patent law since 1856 and continues to have it after independence with due amendments from time to time. Inventions are not necessarily dependent on existence of a patent law, although the patent law is certainly a big contributing factor in promoting inventions which can lead to innovations.

Innovations are inventions plus, and generally understood to be in terms of products or processes which are successful in the market or have the potential to be successful. An invention needs to be followed by many more steps such as scale up, prototyping, testing, characterization, and safety studies to meet regulatory requirements and standards etc. These steps have to be followed by effective manufacturing and marketing to remain competitive.
The Indian patent law is compatible with TRIPS and takes care of essential features of an invention namely novelty, inventiveness and utility. In its philosophy and character, it is no different from patent laws of other countries. The growth in patent filing by Indian residents in the post WTO period is testimony to the fact that inventive activities have grown primarily due to larger awareness and better understanding of ever increasing competition. A study by the author reveals that 16% of MSME drug companies have been filing patent applications in the last ten years.

The Indian law is very sensitive to the inventiveness aspect and therefore has stipulated that some inventions are not patentable in India. The laws of many countries do not spell out such exclusions but do attach importance to inventiveness or non-obviousness. For example, rearrangement of known devices or components not leading to a new effect is not patentable in India. The same concept was followed by the US Supreme Court in deciding the KSR v Teleflex case.

It must be remembered that the patent law has a strong element of public policy as it gives exclusive and monopolistic rights to an individual or a company for exploiting inventions while denying / limiting the remaining population the right to use and practise the invention.

The Section 3(d), perhaps more commonly applied to drugs as it talks of efficacy, is an example of ensuring inventiveness in inventions dealing with drugs and chemicals, and balancing with public policy is achieved in most cases. The law has however, not provided any direction towards interpretation of efficacy and left it to competent authorities like the Patent Office, Intellectual Property Appellate Board and courts. This needs to be looked into as efficacy is linked with scientific and technical aspects and a common rule may not applicable to all cases.

The provisions of compulsory licensing and working of patents are meant to avoid misuse of patents by the patent holder in specific situations. These provisions are, prima facie, not anti- inventions or anti-innovation. A company aspiring to get a patent in India should take into consideration these aspects, because they may affect its business prospects in very specific cases. However, a high degree of judiciousness based on reliable data and analysis of social and market aspects  is called for while arriving at the decision of awarding compulsory license. 
The process of patent granting in India takes a little longer and that has been a cause of concern for inventors and companies, especially MSME. Whether the law should stipulate stricter timelines is a matter for consideration by the competent authority. This is an operational aspect and does not in any way affect the intrinsic character of the law. Like any other patent law, the Indian patent law promotes and nurtures inventions; there is no evidence to conclude otherwise. If the level of inventive activities which the patent system protects, has not grown in the manner expected by us, the answers may lie elsewhere.

(This article appeared in Express Pharma, November 1-15, 2012 under the title "Law has a strong element of public policy")
© R Saha