Appraisal of India’s patent regime!

By M.Y.Siddiqui

India’s patent regime balances fostering technological innovation with protecting public welfare. Guided by the Indian Patents Act 1970, its core strengths like strict patentability limits and strong compulsory licensing, frequently clash with global harmonization and local compliance frameworks. Critical challenges and limitations include evergreen patents grants via examinations, friction with international pressures, eased working disclosure, and software and tech patenting.

Despite resource constraints and differing interpretations by the Indian Patent Office (IPO) frequently lead to the granting of questionable secondary patents. India faces immense bilateral pressure from developed nations to dilute its strict patenting standards in favour of stronger intellectual property enforcement. Patent regulations like Form 27 require patentees to disclose how an invention is worked or manufactured commercially in India to prevent hoarding. However, recent rule amendments, such as moving to triennial rather than annual filing, have sparked fears of reduced transparency and accountability. Unlike jurisdiction like the USA, the Indian framework does not patent standalone software, which limits legal protections for domestic software startups.

India famously restricts the patenting of new forms of known substances unless they demonstrate a significant enhancement of  therapeutic efficacy. This prevents ever greening a tactic multinational corporations use to extend patent monopolies without true innovation. Under Sections 84 and 92 of the Indian Patents Act, the government can grant licences to third parties to manufacture essential medications if the patentee fails to meet public requirements or if there is a national emergency. This has been vital for keeping generic drug prices accessible. India has fully utilized flexibilities provided by the WTO’s TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement to protect its domestic pharmaceutical manufacturing capabilities.

A significant area of tension is the interface between the Competition Act of 2002 and the Indian Patents Act. Patents holders can sometimes exploit their statutory monopolies to engage in anti-competitive behavior, such as patent thickening or reverse payment settlements. Regulatory bodies are increasingly tasked with ensuring that intellectual property rights are not abused to stifle market competition or inflate consumer prices.

India currently operates primarily under one overarching law, the Patents Act, 1970. The Patents Rules, 2003, comprehensively updated this Act. While the original 1970 statute is the sole active law, it has undergone significant amendments in 1999, 2002, 2005, and most recently through the Jan Vishwas Act in 2023, to align with global TRIPS agreement. TRIPS are a comprehensive international legal agreement administered by the World Trade Organisation (WTO) that establishes minimum global standards for the protection and enforcement of intellectual property  (IP) among member nations!

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