Should India reconsider its Patent Protection Regime in the wake of a “Self-Reliant India”?

Pic Credits- https://egyptinnovate.com/

Introduction

The debate on a ‘self-reliant’ India and development has taken an exciting turn. In the early nineties, globalization was greeted with great euphoria, as capital flowing into the developing world had increased. The World Trade Organization had also championed the mantra of trade liberalization, lowering of tariffs and trade barriers being the panacea of growth in the globalizing world. The buzzword in the early nineties for all these organizations was to globalize and grow. In the developing world, many countries, including India, have changed their ideology and the policy framework accordingly.

In the wake of a self-reliant India, we might need to revisit a few fields. Economic and Infrastructural atmanirbharta (self- reliance) are two pillars that would demand review into the existing taxation, financial, and legal systems. It must also be understood that globalization is not new. There was rapid integration of the world economy in the late nineteenth and early twentieth century, but today’s globalization is different from the previous inclusion of the world economy. Globalization in the last era was based more on transportation and communication than on policy changes, as is the case today. Movement of services as well as capital is much faster now because of the developments in Information Technology. Earlier, the economic insecurity was higher because of the growing integration of nations worldwide and the resultant competitive pressures. Currently, it can be deduced that there is a fear that globalization places limits on a government’s freedom to provide for the welfare of its citizens.

The Current Law and its effect

Globalization has shaped and changed many laws in India. India, in accordance with the TRIPS agreement, drafted its Patent Act, 1970, to protect novel inventions. Similarly, the devices relating to industrial designs are also protected under the design law. The inventions are checked for inventive steps and potential industrial applications. Apart from this, it is also examined whether such inventions attract any of the provisions relating to non-patentability, as mentioned in the law. Therefore, the inventive ingenuity or the degree of inventiveness plays a significant role in acquiring the patent rights for these kinds of creative activities. Industrial designs, on the other hand, allow for their registration in context of the inventive activity concerning their shape, configuration, and patterns relating to ornamental or physical aesthetic appearance only. However, it does not protect any innovative invention on any mode or principle of construction or anything which is a mere mechanical device, involving wafer-thin inventive ingenuity. But it does have a useful and practical advantage. This is probably an area where the utility model (petty) inventions fit in, as such inventions are not protectable under the patent regime for the lack of inventiveness. The domestic innovators, particularly those who are engaged in such innovative activities which result into practical usefulness in the existing products seem to be reluctant to apply for protection for these kinds of activities because such innovations have very little inventiveness, which is not able to meet the substantial requirement of an inventive step under the Patents Act. Moreover, these innovators like to commercialize quickly, as the economic life of such innovations may be acute, due to tough competition, not only from within the country, but also from abroad. Further, the patenting system not only takes a long time as compared to the commercial life of the innovations, but is expensive too.

The Probable Self-Reliant Shift

The current patent law offers standardized triple test criteria (novelty, non-obviousness, and industrial utility) for getting patents in India. The novelty aspect with non-obvious implementation is the strong pillar for it. The law was passed in 1970, and changing times need revision in law as well. The revision, which leads to the inclusion of petty patents in the Indian patent protection regime would strengthen the fight towards becoming self-reliant.

Instances like the invention of Mitticool by Mansukhbhai Prajapati harnessing the cooling properties of clay and created a low-cost, biodegradable refrigerator made out of clay and Jugnoo by Charu Monga, which aimed to cater the people living in unelectrified parts of India, particularly in the mountains where they have to travel long distances and come back home to an irregular power supply to have a source of light, are just a few examples of the self-reliant India, which can be. There have been many such unrecorded breakthrough inventions and innovations serving remote parts of India, making it free from dependency of any sort.

The following can be deliberated upon in order to bring the self-reliant picture of India via patent law protection modification amidst all the talk:

  1. Introduction of Petty/ Utility patents, which in some way contribute to solving or solve the existing problems. The aim of such protection should be to offer the solution at a cheap cost to the Indian citizen.
  2. The term of protection can be kept short, for a period of say five years, where the government can assess the success rate and the performance of the innovation and then proceed with its approval for the need of the product in the market.
  3. The government can conduct a pilot run for the crucial product in a certain target area, and based on the performance, can approve the conversion of such petty patents into a product and/or service, solving a number of problems which the masses face.
  4. A survey of existing petty inventions can be utilized to shape the probable structure of the considerations and modifications needed in the system, and mechanism for the introduction of Draft Petty Patent protection regime in India.

Suggestions

Utility patents are referred to by many names, whether it is innovation patent, utility innovations, petty patents or utility certificate. All these names signify protection offered to technical innovations for a short period of time. The WIPO’s IP Statistics Data Centre shows that China tops the list of filing the most PCT applications relating to patents and utility models. The Republic of Korea, Japan, and the USA follow China on the list. The data shows that utility models have been on the rise, with approximately 2.1 million applications. This data suggests the importance of utility patents being recognized by the market and the global players. The established utility patent practices can be used to devise a sui-generis system for India, in the same direction:

  • The utility patents shall not be subjected to a comprehensive substantive examination procedure as required in the invention patent application.
  • The utility patents should be directed to “the shape, structure, or combination of products” only.
  • Utility patent applications should only go through the preliminary examination procedure before notice of a grant is issued, rather than an extensive examination as part of the patent application.

It can hence be said that utility patents are just complementary to invention patents because they strategically play as a “shadow striker” besides the invention patents. A utility patent application in Japan can be converted to a patent application or even a design application, under specific conditions (a patent/design application can also be converted to a utility model application under specific conditions). The practices prevalent in countries with large utility patent filings can serve as a torchbearer for India.

Conclusion

It is essential to realize that the act of intellectual property creation as well as protection culture among the domestic inventors, and small innovators, including SMEs, is playing a very crucial role in the economic as well as technological development of the country. Given the above analysis, it can be stated that existing provisions under the patent law or even the design law are not sufficient enough to protect and promote such kind of business-oriented small innovative activities, thus making Atmanirbhar Bharat a far-fetched dream.

Policymakers have increasingly focused on achieving macroeconomic growth even after liberalization and globalization. The government’s agenda has to place an equal emphasis on inclusive growth to enable all citizens to reap the benefits of globalization. This makes it all the more important to utilize scarce resources effectively. In furtherance of promoting the emergence of a self-reliant India, the policymakers must develop delivery models, which should necessarily include a strict accountability system and a collaborative effort involving the small innovators and SMEs. Reshaping the patent protection laws might help reshape India into a robust and self-reliant nation.

Utility patents usually follow a registration procedure that is significantly simpler, faster, and less expensive. They should be considered as an additional option to protect innovations that have a short commercial lifetime. In case of incremental innovations that are not eligible for patent protection, utility patents can be used as alternatives to invention patents.


(This post has been authored by Priyadarshini Singh, a Research Scholar at RGSoIPL, IIT Kharagpur)

 
 
 
Cite as: Priyadarshini Singh, ‘Should India reconsider its Patent Protection Regime in the wake of a “Self-Reliant India”?’ (The Contemporary Law Forum, 05 August 2020) <https://tclf.in/2020/08/05/should-india-reconsider-its-patent-protection-regime-in-the-wake-of-a-“self-reliant-india”?> date of access.
 
 

Leave a Comment

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.