What it is about Indian patent law that makes it better than other countries?
Indian Patent system offers a lot of benefits. I am highlighting few of them below:
- Getting a patent is quite less expensive in India (when compared to the size of market that the patent can exploit).
- Further, the office offers 80% rebate on patent filing fees for individuals as well as companies registered under the startup program.
- Also, an applicant may receive a refund of 90% of the patent fees upon withdrawing an application before issuance of the First Examination Report (FER). In other words, patent fees can be claimed back when an application is withdrawn after filing the request for examination but before issuance of FER.
- Time for issuance of patent under Indian patent system can be very less (within 300 days in some cases). The fastest grant of a patent has been in 113 days. Very few countries offer such expedited examination procedure.
- Fast tracking of patent applications (that has been introduced for startups) ensures that a request for expedited examination mandates the Controller to issue the First Examination Report (FER) within 105 days.
- Also in normal cases, the response to an FER is to be filed within 6 months (extendable by up to 3 months), and the Controller has time to dispose the applications within 3 months from the date of receipt of last reply, or within 3 months from the last date to put the application in order for grant, whichever is earlier. This helps in getting the patent application granted in much less time.
- When an applicant opts for filing patent application in a foreign country without filing the application in India, a foreign filing license request is disposed of only within 21 days from the date of request.
Compulsory Licensing of Patents
One of the most important aspects of Indian Patents Act, 1970, is compulsory licensing of patent. Under certain special conditions, any person interested may make an application to the Controller of Patents for grant of compulsory license of a patent. This can be done at any time after the expiration of 3 years from the date of patent grant.
The conditions to be fulfilled are as follows:
- that reasonable requirements of the public with respect to the patented invention have not been satisfied; or
- that the patented invention is not available to the public at a reasonable price; or
- that the patented invention is not worked in the territory of India.
- An opposition before the grant of a patent can be filed in India by any person within six months from the date of publication of the application, or before the grant of patent.
- There is no fee for filing such pre-grant opposition.
- Representation for pre-grant opposition can be filed even before a request for examination has been filed (though the opposition gets reviewed only after a request for examination is received by patent office).
No patent for "incremental innovations"
With regard to pharmaceutical provisions, Indian patent law includes section 3(d) which bars incremental innovations. This law is unique to India.
Under this act, a mere discovery of a new property of known substance is not considered patentable. Section 3(d) of the Indian Patent Act restricts grant of patent for insignificant or "incremental innovations" in many drugs unless it provides significant therapeutic advantages to existing molecules.
For instance, use of Aspirin for analgesic purpose is already known. Now if a company tries to protect new use of Aspirin for treatment of the cardiovascular disease, is not treated patentable by Indian Patent Laws. However, a new and improved process for preparing aspirin which may enhance delivery or reduce price is patentable.
Thus, Section 3(d) prevents a lot of non-patentable products to squeeze into the Indian market with a monopoly and raise the price of medicines. Section 3(d) prevents global Pharma companies to market drugs which are not novel thus allowing Indian residents to procure medicines at economical rates.
The expedited patent examination system available for few category of applicants.
Most of the users of patent system want patents to be granted early. An early patent grant can be a shot in the arm. Normally the process of examination is slow.
The new expedited system, available to start ups and applicants that chose IPO as a search office, the process is accelerated. Some of our clients have received patents within one year from filing. This could be quickest in the world.
All patent laws of major countries are good and sufficient enough to test the patentability
However, with regard to pharmaceutical provisions India introduced section 3(d) which bars incremental innovations. This law is unique to India.
Refer indian patent office website for more details