Patenting: an Indian scenario.

Balamurugan, R. ; Radhakrishnan, R.

Abstract

Indian Intellectual Property (IP) regime has undergone a huge transformation over the last three decades. Patent databases are paramount source of technical information for researchers and engineers. Patenting in areas related to Information Technology registered a dramatic growth since 1960s. Between 1982 and 1996, the number of patents in Information Technology (IT) grew by over three times the overall growth (89%) in patenting. The IT sectors exhibiting strong growth which includes software, hardware and semiconductor manufacturing. Though the IP regime in the country is far weaker than desired, it's evolving and awareness among Indian enterprises is increasing. In the recent past, companies has started realizing the importance of patenting, companies are creating culture of innovation. For example, product companies like TCS, Infosys, i-Flex, Sasken etc. nurturing and building strong IP culture. The Indian patent system is still at a vary nascent stage. Software has no patent right and protection is available in the way of copyrights today. Despite the current lacunae, Indian patent regime has undergone radical changes in the recent past and amended three times. Legally, India has a very good patent system in India which is comparable with European Patent System. This paper discusses about the Patent regime worldwide and patent offices located in various places. Various stages of Indian patenting system as well as various steps involved in patenting in India discussed. Initiatives of Government of India and other Institutions also discussed. Apart from these global innovation trends and an overview of some of the important patent battles also discussed.

Keywords: Intellectual Property Rights (IPR), World Trade Organization (WTO), World Intellectual Property Organization (WIPO), Information Technology (IT), European Patent Office (EPO), United States Patents and Trade Marks Office (USPTO), Japan Patent Office (JPO), Korean Intellectual Property Office (KIPO)

I. INTRODUCTION TO PATENT REGIME

Patent is a form of intellectual property rights. Copyrights, Trademarks, Geographical Indications, IC Layout designs, Trade Secrets, Industrial Designs are other forms of intellectual property rights. Copyrights protect original works of authorship. Trademarks (and Service marks) protect against misuse of a name and/or symbol. Patents protect innovation. There is a common misperception about patents--that a patent grants its holder the right to practice an invention. Actually, a patent is a negative grant: a right to prevent others from practicing a claimed invention. The modern concept of Patents dates back to 1421, Florence, Italy, when the city-state granted the first recorded patent to Filippo Brunelleschi, for the design and use of a ship, the Badalone ("seagoing moster"). The Venetian Senate passed the first patent law in 1474, granting limited duration monopoly for original devices. This law embodied the principles of patent protection as we know them nowadays.

In England, 1449, King Henry IV granted the first patent of the nation for stained glass manufacturing. The patent was a government--granted monopoly during that time in England and this lead the country on the path to eventual Civil war as a result of the Crown's corrupt abuse of granting monopolies was causal in the evolution of the rule of law and judicial power at the expense of the monarch, at the end of 16th century. The first United States (U.S.) patent act was in 1790. Patents are more difficult to obtain in U.S. than just a few years ago.

Intellectual Property Rights (IPR) exists in India for many more years but it came to limelight only after 1995 when India entered into WTO as member state. Since then it has become a talk of everyone in India next to Information Technology (IT). It is being predicted that India is moving towards Intellectual Property (IP) destination from the present IT destination. Like an unknown place became famous like Sriperumputhur. In India, Sriperumputhur, a panchayat town in Kancheepuram district (Tamil Nadu) became famous only after the assassination of Mr. Rajiv Gandhi, former Prime Minister in 1991, even though it is a birth place of Sri Ramanuja, one of the prominent Hindu Vaishnava saints. Starting from 1991, in Sriperumputhur till date unprecedented growth has been taking place. Now it is being the destination of Industry majors Hyndai, Saint-Gobain, Nokia, Flextronics, Motorola, Dell etc. and has became the major manufacturing site in the Asia and "also regarded as India's answer to Shenzhen with its growth in electronic component manufacturing.

Literature Survey

Focuses on Indigenous Knowledge (IK) defining local and tacit knowledge showed and Impact of successful social initiatives on social development and international, Indian initiatives for protection of IK highlighted (Siriginidi Subbarao, 2006) [6]. Patent Information scene in India over the last 25 years and the key influences of the Indian Patent Act of 1970 reviewed. The current availability of Indian patent information and moves on reformation of Patent Office by Government discussed. The features of the Indian Patent Act were highlighted. The impact of Indian Patent Act on the flow of foreign patents discussed (Prabhudda Ganguli, 2004) [10]. Discussion on how India made its laws to meet the requirements of TRIPS and the World Trade Organization and also discussed about the amendments on Indian Patents Act of 1970 (Prabuddha Ganguli, 2003) [11].

Bio-technology patents filled in India during 1972-1990 were analyzed. The emphasis of developed and developing countries in pharmaceuticals discussed (Karki & Garg, 2003) [15]. Trends in patenting of inventions in India in the biotechnology area analyzed with reference to provisions under the Indian Patents Act of 1970. Key influences of the Indian Patent Act of 1970 and the India's access to the PCT and WTO in the late 1990s elaborated (Gupta, Subbaram, 1992) [16]. Examination of some of the theoretical assumptions governing a model patent system and highlights the features of the new Indian Patent Act compared discussed. Justification on the use of patent statistics in R & D formulation both at the macro and micro levels (Joshi, Rajan & Subramanian, 1974) [17].

II. OVERVIEW OF PATENT OFFICES WORLDWIDE AND THE TRILATERAL OFFICES

The European Patent Office (EPO)

The "big three"-the European Patent Office, the United States Patents and Trademarks Office and the Japan Patent Office (known collectively as the Trilateral Offices)-have dominated the global patent landscape in the past, other offices in rapidly growing economies such as India and China are catching up. These three offices set up the Trilateral Offices 25 years ago to debate common concerns. EPO established in 1977 by the European Patent Convention (EPC) to create a centralized patent application and grant system on behalf of all member states. At present EPC has effect in more than 30 European nations including all European Union member states. At the end of 2006, the EPO had 6,500 staff members, with approximately 3,500 examiners. The number of filings increased from 1, 81,000 in 2004 to approximately 2, 80, 000 in 2006.

United States Patents and Trademarks Office (USPTO)

USPTO was established to promote the progress of science and useful Arts, by securing for limited period to authors and inventors the exclusive right to their respective writings and discoveries. It is the largest Patent Office in the world, having around 7, 300 employees. Of these, about 3,000 are patent examiners and 400 are trademark examining attorneys, with the rest is support staff. The total number of applications increased from 2, 50,000 in year 2000 to over 4, 00,000 in the year 2006.

Japan Patent Office (JPO)

Since 2002, the Japanese government intensified its efforts towards the realization of a "Nation Built on Intellectual Property". The JPO, a Federal agency has 2,651 staff which includes 1,358 examiners and approximate annual budget estimated at EUR 800 million. The annual number of patent applications filed in Japan remained steady at more than 4,00,000 since 1998. Korea, China and India are the leaders among the other developing nations in filing and granting patents.

IP Australia

IP Australia is the Australian Government agency responsible for administering patents, trade marks, designs and Plant Breeder's Rights. By granting these rights, and contributing to the improvement of Australian and international IP systems. IP Australia is supporting Australia's economic development. IP Australia incorporates the Patent, Designs, Trade Marks and Plant Breeder's Rights (PBR) Offices. It is a prescribed agency within the Department of Innovation, Industry, Science and Research (DIISR) but operates independently and reports directly to the Minister. The list of regulatory and advisory bodies under IP Australia are of the following : Advisory Council on Intellectual Property (ACIP), Intellectual Property and Competition Review Committee, Professional Standards Board for Patent and Trade Marks Attorneys, Patent and Trade Marks Attorneys Disciplinary Tribunal, Disputes with agents or legal representatives, The Plant Breeder's Rights Advisory Committee.

Korean Intellectual Property Office (KIPO)

The KIPO has a staff of 1,517, which includes 728 patent examiners. The Korean office has no official backlog and has even reduced times for patent examinations. In 2004, KIPO examined roughly 1,60,000 patents, and outsourced half of them. Korean firms such as Samsung and LG are among those with the most patent applications to the EPO.

Indian Patent Office (IPO)

The major growth reported from the country's IT and services sectors. The Indian Patent Office has approximate staff strength of 200 with 135 examiners. In 2005, Indian Patent Office examined approximately 14,500 patent applications. There are number of pilot projects between the USPTO, JPO, KIPO and Canadian, UK Patent Offices. In this list, the USPTO and the EPO have decided to speed up patent-granting process at two offices by launching a project similar to a Patent Prosecution Highway (PPH). It is the first PPH--type project that the EPO has taken part in. A new Global IP Index developed by law firm Taylor Wessing in association with Z/Yen Limited, with the support of Managing IP rates UK, US and Germany as the top three major three jurisdictions in the world for IP protection, while China is ranked bottom. Among the best-rated countries, the UK is rated top except in copyright, where it is beaten by the US. The US is rated only 6th out of the 22 countries for trademarks. The Index gives each of the 22 jurisdictions a rating of 1,000 in three sub-categories of patents, trademarks and copyright. Each jurisdiction receives an overall IP rating which places it in one of tiers. Despite the UK and Germany are in tier 1 and the Netherlands, France in tier 2, Poland and Italy in tier 4. The highest ranked Asian country is Singapore, which appears in tier 2 and Japan in tier 3. The so-called developing BRIC markets, Brazil, Russia, India and China make up tier 5 in all three sub-categories and the main index. China is ranked bottom in each one.

III. INDIAN PATENT SYSTEM

Background of Patent Regime in India: Indian Patenting history started 150 years ago, with the promulgation of legislation by Government of India on 28th February, 1956 termed as "Exclusive Privileges for the encouragement of inventions of new manufactures". The act VI of 1856 on protection of inventions based on the British Patent Law of 1852. Certain exclusive privileges granted to inventors of new manufactures for a period of 14 years. The first application for patent made by Mr. George Alfred DePenning, a Civil Engineer on 3rd March, 1856 for his invention "An Efficient Punkah Pulling Machine". This inventor on 2nd September, 1956 submitted specifications along with drawings, illustrations. He submitted 2 more applications in the same year. Calcutta Patent Office granted patent for this inventor in the year 1956 and many more in the following years.

In 1859, the act modified as Act XV. Patent monopolies called Exclusive privileges (Making, Selling and using inventions in India and authorizing others to do so for 14 years from date of filing specification). In 1872, the Patents and Designs Protection Act introduced. In 1883, the Protection of inventions Act came into existence. In 1888, consolidated as the Inventions and Design Act. In 1911, the Indian Patents & Designs Act introduced which granted to the inventors of new manufactures for a period of 14 years protection for their inventions. In 1972, the Patents Act (Act of 39 of 1970) came into force on 20th April 1972. The Indian Patents Act 1970 was implemented to encourage innovation by protecting proprietary research and development. Patents issued for methods of producing products (composition of matter), but not for the products themselves (i.e. pharmaceuticals). As a result of this one can commercialize a drug that was a proprietary product of another as long as ones own method of producing that product was used. The Patent term for Chemicals, food and drugs were only 7 years which was very short compared to WTOs mandatory 20 years term from filing date. Protection is not for imported products and only for the means of producing that product. On March 26, 1999, Patents (Amendments) Act, 1999 came into force from 01-01-1995. In 2002, the Patents (Amendments) Act 2002 again amended which came into force from 20th May, 2003. The latest amendment was on 2005, this Patents (Amendments) Act 2005 was effective from 1st January, 2005.

The major feature of Patents (Amended) Act, 1970 are provision for 20 years term from the date of filing and this includes so called mail-box applications. Mail-box applications are product patent applications that were filled with the Indian Patent Office from 1st January 1995 to 31st December, 2004, but were held in limbo (and unexamined) pending resolution of policies and laws regarding treatment of these product patents. India amended Patents Act 1970 third time in 2005 and The Patents (Amendment) Act 2005 was ratified by the Indian Parliament in April, 2005 and was in force since 1st January, 2005 to meet compliance requirements under WTO agreement on TRIPS. It also replaced the Patents (Amendment) Ordinance 2004, which was hurried through passage at the end of 2004 in order to meet 1st January, 2005 deadline.

New uses of known substances are not patentable. New dosage forms are patentable as long as an unexpected or surprising result is established. To be patentable, the pharmaceutical substance must demonstrate a synergistic effect, and not simply be an admixture where efficacy is merely that based on the individual ingredients independently. This act also provides that derivatives, esters, salts, particle size, metabolites, polymorphs, isomers, complexes, combinations, and other derivatives of a known substance would be considered the same substance absent a showing of enhanced therapeutic efficacy. In particular, biotechnology, vectors, sequences, plasmids, and the like could be patentable under the revised laws, provided that a demonstration of industrial application is shown. Method of treatment of animals or human is not patentable, while methods of treatment of plants are patentable. Diagnostic procedures, particularly those involving in vivo analysis, are not patentable. In an enforcement view, importation of a patented product or a product made by a patented process is now considered as an infringing activity under the Act. The import, use, or sale of a patented product for the purpose of obtaining data intended to be submitted to any regulatory authority is exempted from classification as an infringing act. The Act also addresses importation and licensing issues. Compulsory licenses for manufacture and export of patented pharmaceutical products to countries having insufficient or no manufacturing capacity may be obtained in order to meet public health needs, assuming the nation of import authorizes such importation. Ministry of Science and Technology, Government of India proposed to exempt all biotechnology industries from the requirements of compulsory licensing.

As most of the nations have their own IPR laws, to eliminate cumbersome procedure of applying for patents in every country by Inventors for protecting their invention, in 1978, Patent Cooperation Treaty (PCT) created to reduce delays, expenses and to avoid piquant situations in Patenting process. India joined as a signatory nation to PCT on December 7, 1998. Even after 150 years of IPR history in India, worrying factor is that Indian Industries and Academia have not yet risen to the challenges. The Washington Diplomatic Conference on Patent Cooperation Treaty (PCT) took place from May 25 to June 29, 1970. The Patent Cooperation Treaty was signed at the very end of the conference on June 19, 1970. The treaty entered into force on January 21, 1978 initially with 18 Contracting States. Any Contracting State to the Paris Convention for the Protection of Industrial Property can become a member of the PCT. As of April 3, 2008, there were 139 Contracting States to the PCT. PCT provides a unified procedure for filing patent applications to protect inventions in each of its Contracting States. A patent application filed under the PCT is called an international application or PCT application.

IV. INDIAN PATENT INITIATIVES

Ministry of Commerce & Industry

The Department of Industrial Policy and Promotion under the Ministry of Commerce & Industry is responsible for Intellectual Property Rights relating to Patents, Designs, Trade Marks and Geographical Indication of Goods and oversees the initiative relating to their promotion and protection. These include the outlining of policy and its implementation through the Office of the Controller General of Patents, Designs and Trade Marks. Promoting awareness regarding protection of the Intellectual Property Rights inherent in industrial property in conjunction with the World Intellectual Property Organization (WIPO) and apex industry organizations apart from similar initiatives involving regional industry associations. It also provides inputs on various issues relating to the Agreement on Trade Related Aspects of Intellectual Properties (TRIPS) related to World Trade Organization (WTO) in these fields. The Department undertakes technical cooperation programmes with the World Intellectual Property Organization (WIPO), Geneva for the modernization and upgradation of Intellectual Property (IP) administration relating to patents, designs, trademarks and geographical indications and the organization of Human Resource Development and awareness generation activities in the country.

Office of the Patent Information System (PIS)

Ministry of Commerce and Industry, Department of Industrial Policy and Promotion established Patent Information System (PIS), in the year 1980 with the following objectives. To obtain and maintain a comprehensive collection of patent specification and patent related literature on a world wide basis to meet the needs for technological information of various users in R&D establishments, Government Organizations, Private Industries, Business, Investors and other users. To provide technological information contained in patents or patent related literature through publication services, search services and patent copy supply service; and to meet statutory obligation regarding novelty search under the patent Act, 1970 (Amended). The major initiatives by the Department include modernization of IP infrastructure and establishment of new integrated offices in Delhi, Kolkata, Chennai and Mumbai which was completed during July 2007. A programme costing Rs.153 crores implemented in the 10th Five Year Plan of Indian Government. The programme focused on the following: Infrastructure development; Computerization; Human resource development; Training and awareness. Further modernization of IP Offices to provide additional human resources, higher level of computerization to support on-line processing, strengthening of data-base and novelty search facilities, awareness generation activities, accession to international treaties/ conventions is being taken up in 11th Five Year Plan. The Department has introduced e-filing facility for patent and trademark applications. Along with the legislation, rules have also been amended to install a user-friendly system for processing of IP applications. As a result of modernization, the filing of patent applications has increased which has been shown below in detail.

Technology Information, Forecasting & Assessment Council (TIFAC):

It is an autonomous organization under Department of Science and Technology (DST) aims to keep a technology watch on global trends and formulating preferred technology options for India. The Patent Facilitation Centre (PFC) of TIFAC has conducted 305 awareness workshops sensitizing about 3200 scientists, technologists and policy makers from 85 Universities, 100 R&D institutions and 150 industries. Besides providing assistance for filing patent applications, the centre provides patent search services through two databases viz. Ekaswa-A: Patent applications filed in India as published in the issues of the Gazette of India (Part III, Section 2) from January 1995 onwards and Ekaswa-B: Patent applications notified for opposition in the Gazette of India (Part III, Section 2) published from January 1995 onwards.

Patent Facilitating Centre (PCT) by TIFAC under DST

A Patent Facilitating Centre was set up by Department of Science and Technology under Technology Information Forecasting and Assessment Council (TIFAC) in the year 1995. The major objectives of PFC are introduction of patent information as a vital input in the process of promotion of R&D programmes. Providing patent facilities to scientists and technologists in the country for Indian and Foreign patents on a sustained basis. Keeping a watch on developments in the area of IPR and to make important issues known to policy makers, scientists, industry etc. Creating awareness and understanding relating to patents and the challenges, opportunities in this area including arranging workshops, seminars, conferences, etc. This Single Window facility to serve with a smile and "May we help you" approach. PFC has been undertaking specialized studies based on patents granted and also on other patent related subjects.

National Research Development Council (NRDC) under DST

The NRDC team has a singular purpose which is to identify and satisfy the potential investor in the use of innovative, reliable and competitive technologies co-developed or marketed by the corporation. To this purpose, NRDC harnesses its human resources to promote, through flexible funding schemes, the development of marketable technologies in close association with industry and national R&D institutions. To evaluate the technological merits and commercial potential of incipient or mature technologies by conducting techno-economic surveys; technology and business forecasts and investment appraisals, preemptively protect intellectual property rights worldwide. To design and engineer manufacturing plants of commercial scale. To shape and manage technology contracts those are fair and equitable. To test -market products and assist in obtaining certifications for products and their quality, where these are prerequisites for entering commerce.

This Institute's Research Department undertakes to research in Intellectual Property Rights (IPRs) issues and aims at establishing, maintaining and managing center(s) of research to promote the knowledge of intellectual property laws of India as well as intellectual property systems of other countries. The Institute aims at establishing rapport with research bodies, Chambers of Commerce, businessmen and other professional institutes to ensure promotion of Intellectual Property research. The Institute provides training in the field of Intellectual Property research and management to lawyers, scientists of R&D labs, students and other professionals.

Confederation of Indian Industry (CII) Initiatives in IPR

Confederation of Indian Industry (CII) has a National Committee of Intellectual Property (IP) Owners, Chaired by Mr. Shanker Annaswamy, MD, IBM India Ltd. and having members from IP Owners' Industry. Andhra Pradesh Technology Development & Promotion Centre (APTDC--jointly promoted by CII, TIFAC and Government of AP) Governing body, Chaired by Secretary, Department of Science & Technology, Government of India and having members from Industry, Government of India & Andhra Pradesh. APTDC established in the year 2000 as an autonomous organization in Hyderabad to help SMEs in technology and IPR areas. APTDC's IPR Facilitation Cell is the pioneer institution in the country in providing various IPR services towards Training, Information & Advisory services and IP protection facilitation. The overall objective of CII's initiatives in IPR is to enhance competitiveness of Industry through wealth creation through IPR. The primary focus of the initiative is to take policy initiatives, awareness creation, capacity development, IPR services, international networking and also combating the menace of counterfeiting & piracy.

Biotechnology Patent Facilitating Cell (BPFC) under Department of Biotechnology

During few years of its existence, BPFC has carved out a unique identity of its own among the biologists and biotechnologists in the country; with several achievements in the field of technology development in the Indian context. BPFC has facilitated filing more than 100 Indian and international patent applications out of which more than 10 patents have been granted. BPFC now looks forward to Industry for taking up of these technologies to the market and to the consumers. The BPFC has organized a series of national seminars on "Patenting in Biotechnology" and "IPR in Biotechnology" at various Institutions and Universities around the country, in collaboration with World Intellectual Property Organization (WIPO), Geneva, to enhance the awareness of the scientists about the inventions, process of patenting, issues in IPR in biotechnology and the strategic importance of the IPR in post-GATT era, the procedures and nuances of writing patent documents with description, claims and issues associated with the protection of live forms, international patenting, product patents etc. TKDL access agreement with International Patent offices has been permitted by the Government. Access to TKDL would be secured and shall be utilized by the examiners of Patent Offices for patent search and examination purpose only. Negotiations with leading International Patent Offices are in an advanced stage. Two journals published by the institute namely National Institute of Science Communications and Information Resources (NISCAIR) Indian Journal of Traditional Knowledge (IJTK) and Medicinal and Aromatic Plants Abstracts (MAPA) have been included in the PCT minimum list.

During December, 2005, the Cabinet Committee on Economic Affairs (CCEA) granted approval to the Council of Scientific and Industrial Research (CSIR) to implement an Intellectual Property and Technology Management scheme during Tenth Five-Year plan at a total cost of Rs. 145.15 Crore. In this, CSIR gets Rs. 100 Crore through the Plan Budgetary support and the rest Rs. 45.15 Crore would come from the earnings of CSIR laboratories.

Ministry of Health and Family Welfare (MoH&FW)

The WTO Cell in the Ministry of Health and Family Welfare works on ascertaining impacts on public health due to globalization and suggests ways to formulate effective legislation and policy initiatives to deal with it. In particular, the function of the WTO Cell includes providing technical assistance to the MoH&FW in the area of international trade related agreements, such as TRIPS, GATS, SPS and TBT.

Council of Science and Industrial Research (CSIR) It is the leading publicly funded research organization in India. It undertakes research in diverse fields of science and technology. The output of CSIR has grown over the years, both in terms of patents and publications. It had filed 260 patent applications in India and 58 patent applications abroad during 1995-'96 which has been increased to 407 and 645, respectively, during 2005-'06. CSIR would perform well in the 11th Five Year Plan (2007-2012) in the emerging technologies. CSIR leads patenting in India and it received 378 (57%) patents in the under US patent system and 1660(34%) patents under Indian patent systems during 1990-2002. In this period, 669 US patents granted to Indian organizations by USPTO and in Indian Patent Office 4,848 patents granted. In this period, only 8 organizations accounted for 80% US patents and 20 organizations accounted for 60% of patents in the IPO.

V. PATENTING PROCESS IN INDIA

Patenting-An Overview

A patent is defined as an exclusive right provided to the owner with the objective of excluding others from making, using or selling the invention that was defined in the claims of the patent. This right is provided for a specified period of time. There are five different steps that must be followed in order to obtain a patent. These include: Inventor's disclosure, Patentability search, Filing a patent application, Patent application examination, Patent application amendment.

Patenting starts when the inventor finds value in his/her invention and starts thinking to protect invention. Formal process of obtaining patent begins when the inventor discloses the full details of invention in written format to the patent office. While disclosing, the inventor should clearly state details such as the nature of the invention, details process steps involved in the development of the invention, the various merits and demerits of the invention over other existing methodologies, usefulness of the invention etc. The possibility of obtaining patent is more if the inventor discloses the invention by means of illustrations, drawings and it is important that whatever has been described in written format should be similar to when has been explained through drawings. At last, the inventor should sign at the end of disclosure and clearly specify the date on which the disclosure was made which ensures there was somebody who had witnessed the invention disclosure.

Every application shall be accompanied by a provisional or complete specification. Filing of a provisional specification allows the applicant to get an early application date. Provisional Specification contains Title, Written Description, Drawings, if necessary and Sample or model if required. The complete specification shall contain Title, Abstract, Written Description, Drawings (where necessary), Sample or Model (if required by the examiner), Enablement and Best Mode, Claims and Deposit (Microorganisms). The following documents have to be submitted at the time of filing patent applications are : Form 1--Application for the grant of patent, Form 2--Provisional or Complete Specification, Form 3--Statement and undertaking by the applicant, Form 5--Declaration as to inventorship, Form 26--Authorization of patent agent or any other person.

Priority document details have to be filed for a Convention application. To get a U.S. patent, it should be filled in U.S. Patent and Trademark Office. There are two types of patent applications namely provisional and non-provisional patent application. Patent Application can be filed at any of the four patent offices in India. Patent Offices are located at Kolkata, New Delhi, Chennai and Mumbai. A patent provides protection for the invention to the owner of the patent. A patent is granted by a national patent office or by a Regional Office. The protection is granted for a limited period, generally 20 years. Priority date is the date of first filing allotted by the patent office to an application. There are three different types of patents utility patent, design patent and plant patent on a new variety of living plant.

The first step in securing a patent is the filing of a patent application. Patent search should be conducted before filling the application. If the application is submitted with the Patent Office, the officer then starts publication and examining the authenticity of invention. If every thing is in order, the patent would be granted to the inventor. If the application gets rejected, the inventor has to make the necessary amendments and resubmit the application. It is advisable to use help from the Patent professionals or IPR firms so that the entire process is smooth and painless. Once the application is submitted to the Patent Office, the office then starts examining the authenticity of invention. If every thing is in order, the patent is granted to the inventor. If the application gets rejected, the inventor has to make the necessary amendments and re-submit the application. Usually there are specialized firms that take care of patent applications and it is advisable to use help from these professionals so that the entire process is painless and smooth. By getting a patent, the amount invested for the development of products for development of products and also could generate sufficient income for further research and development.

Patent Application Examination

Examining the value of a particular invention is an aspect that is very much important while issuing a patent. Whenever any application is filed for a patent in a Patent Office, the application is examined for patentability by a Patent Examiner. In an examination process of Patents, a Patent examiner looks for in inventions which include novelty, usefulness and non-obviousness. An invention should not be an elaboration of a fact that was already explained nor should it be an extension of something that already exists. Every application must meet all these three conditions otherwise patent application would be rejected. Non-obviousness is the most difficult criterion that is to be explained in a patent application. Obviousness of an invention refers to previous arts, printed publications and several other patent applications that were successfully filed earlier.

Electronic (e)-Filings of patent Applications

The Indian Intellectual Property Office (IPO) has commenced e-filings of patent and trade mark applications during July 2007. With this facility, India joined elite group of dozen countries including U.S., Japan, South Korea, China and the EPO having e-filing of patent applications, with this first phase of modernization of Indian Patent Offices came to an end. Patent Office Chennai received nearly 100 applications using e-filing mode of Patent Application submission. Some of the salient points regarding e-filing are mentioned herein below:

1. To operate the e-filing system, the agent/attorney is required to have a digital signature. The digital signature is a requirement under the Information Technology Act, 2000.

2. The digital signature is allocated after a physical verification of the applicant for digital signature;

3. A single digital signature works for e-filing of both patent and trade mark applications i.e. separate signatures are not required;

4. The digital signature can be obtained for a fee of Rs. 2,500/-. This signature is valid for one year. In case digital signature is required for two years, then the fees is Rs. 4,000/-.

5. Once the digital signature obtained, the agent/attorney/applicant can allocate as many user ids as they desire;

6. At the moment the payment gateway is through State Bank of India (SBI) i.e. applicant/agent/attorneys requires to have a SBI account (current/saving) to file patent and trade mark applications.

7. There is a facility for fee payments by credit cards as well, but it is not yet operational.

8. If the applicant is a foreign national and the applicant is filing the application in India electronically, then it is a mandatory requirement that the applicant should have (a) a digital signature; (b) SBI Account and (c) address for service in India.

9. For Foreign applicants desirous of obtaining the digital signature, an endorsement and clearance from applicant's embassy in India is required.

10. At present only the Patent Form 1 and the complete specification can be filed electronically. There is no provision for filing for amendments and assignments at the moment. The IPO has advised that the changes in the software will happen gradually and at the moment apart from filing the application electronically, the applicants/agents/attorneys are required to physically file the application as well.

11. For trade mark electronic filings, the application can be filed electronically and no hard copy requires following the electronic filing as in the case of patent electronic filing at present.

V. INDIAN PATENT TRENDS

ISA & IPEA

The Indian Patent Office recognized as the International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA) by the World Intellectual Property Organization (WIPO) which consists of more than 170 member nations. As an ISA and IPEA, major functions of the Indian Patent Office will be to approve or establish the title and conduct international searches. The recognition of India as an ISA and IPEA places India among 15 nationals currently recognized at a global level. This status would also generate an income through fees. India is the only country in the Asian region recognized as an ISA and IPEA.

Patent Ranking among Nations

India ranked 3rd among developing nations with filing of 686 patent applications. Republic of Korea (7,061) and China (5, 456) got 1st and 2nd ranks respectively. The other developing nations followed are South Africa (390), Brazil (384), Mexico (173), Malaysia (103), Egypt (41), Saudi Arabia (35) and Colombia (31). Developing countries make up 78% of PCT membership, representing 108 out of 139 countries signed to PCT. In overall ranking of the nations U. S. A. leads which was followed by Japan, Germany, the Republic of Korea, France, the UK, China, The Netherlands, Switzerland and Sweden. A total of 1,56,000 applications were filed in 2007, a 4.7% rate of growth over the previous year, as per WIPO statistics. North East Asian nations accounted for more than a quarter (25.8%) of all international applications filed under PCT. With over 52, 000 PCT applications, inventors and industry from US got 35.5%(over 52,000) in 2007 (a 2.6% increase over 2006). Applications from Japan got 2nd place by replacing Germany in 2003 with a 2.6 growth over 2006 with 17.8% of the total number of applications. Germany registered 116% of all applications in 2007 (8.4% increase). China achieved 37.1% growth rate in 2007. Brazil, Malaysia, Singapore and Turkey are other nations had growth rate of 10% and above.

Patent Ranking among Organizations

Matsushita of Japan moved into 1st place with 2,100 applications published in 2007, followed by the Dutch MNC Philips Electronics NV with 2,041 applications. Bosch of Germany (1,146), Siemens of Germany (1,644) retained 3rd place, Huawei Technologies in China (1,365) moved into top 4. This was followed by Toyota of Japan (997), Qualcomm of US (974). Microsoft jumped into 8th position (845), followed by Motorola of US (824) and Nokia of Finland (822) applications. In PCT 2007 applications, Telecommunications (10.5%), Information Technology (10.1%) and Pharmaceuticals (9.3%). Approximately 5.6% (8,700) international applications filed with WIPO PCT Receiving Offices (RO). It took 18 years for PCT since its beginning in 1998 to reach 2, 50,000 applications. In the last four years, applications are doubled 1,000,000.

Foreign R&D centers in India secured 473 (26%) of overall patents granted to Indian organizations in the USPTO. 21 Indian Universities received patents in India and 7 Indian Universities received patents in US. Indian organizations were patenting mainly in the Pharmaceutical and Chemicals sector whereas foreign organizations focus on Office machinery, Computers, Electronics, Electrical equipments. Insignificant number of design patents were granted in India which is the worrying factor whereas in USA design patenting is substantial portion of overall patent profile.

In India 80,574 Patent applications have been filed with the patent office between January 2005 and November 30, 2007 and this number is way below 1,82,385 compared to the patents that were in force in China in the comparable period. Till 2005 only, 6, 857 patents were in force in India. Though the number of applications received encouraging, the grant of patents has been slow. In the latest post 2005 regime, only around 400 new patents approved and most of them belong to Pharmaceutical products and agrochemicals. New approvals include Mail Box applications filed between 1995 to December 2004 which had been opened post January 2005.

In 2005, as per World Intellectual Property Organization (WIPO) statistics, among developing nations, Korea topped in filing PCT applications followed by China. India stood 3rd filing 1/4th of China's count. In China, almost 50% of the applications by local inventors, as far as India is concerned local inventors count is less than 30%. India had already been entered into the 11th Five Year Plan (2007-2012). As per data released by Central Statistics Organization, India's gross domestic product (GDP) grew at 9.4% for the fiscal year 2006-2007, up from 9% in the previous year. This shows that economy is moving in a sustainable fashion and it sends a positive signal to the international community. The rupee has been strengthening against U.S. dollar over the past few months because of strong portfolio and capital investments, making exports from India relatively more expensive. Sustainability of economic growth trends and managing inflation rate are regarded as the key points in the economic survey 2006-2007.

Clearance, Backlog and Digitization

Over 10,000 patent cases received clearance in 2002-2003 compared with 2,800 patent applications in 1999-2000. Out of the pending 45,000 patent applications, preliminary scrutiny reports have been issued for over 42,000 applications. Recruitment of Additional Personnel: 62 new patent examiners have been recruited. Operation Sunrise: The patent office reviewed (by the January 30, 2004 deadline) 2,000 applications received as of December 30, 2003. Over 70,000 patent records and 20,000 design records have been digitized. A searchable database has been proposed for the website. (Source: Ernst & Young Analysis, 2005).

Patent Process Outsourcing in India--An Emerging trend

Legal Process Outsourcing (LPO), a forte sector within the Knowledge Process Outsourcing (KPO) space, is attracting international law firms who are outsourcing legal work to India. Within the LPO industry, it is patent outsourcing, which is catching up faster than the rest of LPO jobs. While major firms in the US quote up to $15,000 for preparing and filing a patent application, companies based in India deliver the same work for $2,500-3,500 in India. This allows companies to file additional patents within the same budgets.

VI. GENERAL TRENDS ON GLOBAL INNOVATION IN INDIA

Mobile Service provider Vodafone joined hands with Microsoft India to provide its users SMS search service at a rate of 30 paise per query. This SMS search service, powered by Microsoft's live search, is being developed at Microsoft India Development Center (MSIDC). The IBM India Research Lab. will act as a focal point for the Mobile Web initiative, which is aimed to bring more features to mobile devices as they continue to rival the PC as the primary tool for web-based business, education, communication and entertainment. IBM predicts the number of mobile web users would grow by 191% from 2006 to 2011 to reach one billion. India has become the Asia's most popular destination for conducting clinical trials and overtook China. According to the Planning Commission: around 139 new trials outsourced to India compared to China's 98 trials recently. In terms of market value, the outsources clinical trials to India is estimated at around $300 million, an increase of 65% in 2006 and is expected to reach $ 1.5-2 billion by 2010. Compared to China, India follows ethical guideline very strictly and Indian doctors having reputation far better than their Chinese counterparts. At present, 40 institutes involved in teaching clinical trails and they produce 5,000 students annually which is 50% lesser than the required 11, 000 annually. By 2010, India would need 50, 000 specialized people in Clinical trials. Swiss Unit of Glenmark Pharmaceuticals Ltd. received $15 million from U.S. based forest Labs. For the Indian firm's experimental Oglemilast molecule. Naovartis in January 2008 decided to ramp up operations in Indian Development Centre by hiring 700 people in coming 18 months, this would it's total strength to 1000 (at presently 300).

As of January, 2008, 29 India based Information Technology companies stand among world's best top 100. As per reports, in 2007 a total of 436 M&A deals in the services industry. The Indian services providers derive between two-third to three-fourth of their revenues from the US are back to the drawing board to consider non-US avenues. Europe and Japan are emerging as potential markets. India emerged as the hub for global delivery with 57% of the employee engaged in delivery centers across India, compared to 18% in the U.S.A. As per studies, Microsoft losing almost 72% of its revenue due to circulation of pirated software which hasn't been controlled due to poor awareness among law-enforcing agencies. Even though best IPR laws are in place, enforcement mechanism plays as a deterrent to innovation. Microsoft awarded IPR scholarships to 33 law students from 11 law schools. This award carries Rs. 80, 000. Siemens Limited singed a MoU with Government of Maharashtra to set up Power Generation, Railway transportation Unit and also an R&D center at Kalwa, near Mumbai with 1,000 people capacity and an additional software centre in the state.

The number of patent filings from India R&D centers showing increasing trend over the years. The increasing reliance on Indian R&D operations shows a growing trend while outsourcing lower-level technical jobs to India has been a practice of multinational technology firms. To boot, Adobe issued 33 patents from India in the last nine years, out of which, 25 have been approved internally and other are pending. Adobe India delivered the first India-bred product--Pagemaker 7--which has become a global standard. Since U.S. patent filing and approval is a long drawn process, which takes anywhere between 36 months and 48 months, it is difficult to fix an exact number of patent filings from India. In terms of patent filling, the top five emerging markets had filed 3, 500 patents between 1999 and 2003. As per Government report from U.S., US patent applications from China, India, Singaproe, South Korea and Taiwan rose to 759% during 1981-2000, while the patent applications from the U.S. increased by 116% during the same period.

VII. PATENT CASES IN INDIA

Case 1--Basmathi Rice:

Basmathi is a variety of long grown rice. It was famous for its fragrance and delicate flavor. India is the largest cultivator and exporter. They have a relative low yield, but produce high-quality grains and command high prices in the domestic and international markets. Two varieties are white rice and brown rice. Rice Tec, Texas based company granted patent for certain strains of rice, named basmati 687, sufficiently novel to grant it patent # 5,663,484, entitled "Basmati Rice Lines and Grains", giving Rice Tec exclusive rights to any basmati hybrid grown anywhere in the western hemisphere. It was related to the crossbred rice lines and grains developed by the U.S. Company. In total, the company made 20 claims, including a method for the development of novel rice lines. Claims 15 to 17 of the patent were threatening India which defined rice grains without any limitations or territory or photoperiod insensitivity. These claims worded very broadly, so that they included 90% of rice germplasm and even traditional rice lines like Bas 370, Taraori Basmati, Karnal local and other varieties. After realizing the threat posed by claims 15 to 17, India filed a request on April 28, 2000, and urged the USPTO to re-examine the claims. This was forced Rice Tec to withdraw four of the contentious claims including 15 to 17. Based on the documentary evidence submitted by India, USPTO issued notice to Rice Tec on March 27, 2001 a substantial question of patentability affecting all the remaining claims. Subsequently, in 2002 Rice Tec withdrew 15 out of 20 claims except those related to the specific rice lines developed by it and not to any varieties or lines grown in India and also USPTO ordered title of the patent to be changed to "Rice Lines Bas687, RT1117 and RT1121". Today more than 600 patents filed on rice. Indian government introduced IP legislation on Geographical Indication (GI) of the origin of the origin of agricultural products. Out of nearly 5,000 patents granted by USPTO, 80% were plants of Indian origin.

Case 2--Neem Patent Battle

Over 70 per cent of our agriculture practices are based on traditional knowledge. The European Patent Office (EPO) granted the patent on Neem as a fungicide to the United States Department of Agriculture and Multinational W.R. Grace in 1995. In 1995, WR Grace patented Neem-based bio pesticides, including Neemix, for use on food crops. Neemix suppresses insect feeding behaviour and growth in more than 200 species of insects. After India's appeal against this patent in 2000, EPO revoked this patent in 2000. However the multinational went in for an appeal against the patent revocation which rejected after India led by environmentalist Ms. Vandana Shiva presented further evidence to support that use of Neem in varied forms is a part of traditional Indian knowledge and not a novel product, who heads the Research Foundation for Science, Technology and Ecology. The documented evidences presented by India included research performed by two scientists prior to 1995 on use of Neem, known for its medicinal properties, for making several products like fungicide. Merely digitalizing ayurvedic knowledge is not sufficient. There is a need to provide patent protection for all traditional knowledge to stop product piracy. She was part of India's successful bid to protect Basmati, a traditional long-grained aromatic rice variety grown only in India and Pakistan, from being patented in the US. Extensive testimony witness by expert Mr. Abhay Dattaray Phadke of Pune, India, the 4-person panel judged that the claimed "invention" was lacking an "inventive step", which is a prerequisite to obtaining patent protection. The panel had earlier ruled that the USA/ Grace Neem fungicide product was lacking in "novelty," another patent criterion, 'and established that its properties and use were "prior art" years before the "proprietors" applied for a patent. The winning challenge comes after years of campaigning and legal efforts against so-called "bio-piracy". India won a 10-year long battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product, derived from Neem.

Case 3--Turmeric Patent Battle

Turmeric is a tropical herb grown in East India, and the powdered product made from the rhizomes of its flowers has several popular uses worldwide. Turmeric powder, which has a distinctive deep yellow color and bitter taste, is used as a dry, a cooking ingredient, and litmus in a chemical tests, and has medicinal uses as well. A U.S. patent on turmeric was awarded to the University of Mississippi Medical Center (UMMC) on March 28 1995, particularly for the "use of turmeric in wound healing". UMMC filed application for patent on December 28, 1993. This patent granted them the exclusive right to sell and distribute turmeric. In June, 1996 Council of Scientific and Industrial Research (CSIR) challenged the novelty of the University's "discovery" through a petition to USPTO. Followed this, the USPTO investigated the validity of this patent. In this investigation, USPTO learnt that in India, turmeric has been used for thousands of years; concerns grew about the economically and socially damaging impact of this legal "bio-piracy". In August 13, 1997, the patent was revoked after the patent stood for two years although the process was non-novel and had in fact been traditionally practiced in India for thousands of years, as was eventually proved by ancient Sanskrit writings that documented turmeric's extensive and varied use throughout India's history.

Case 4--JUTE Patent Battle

A British company, Geohess, received the European patent under the head of invention for use of hessian cloth which gave it exclusive rights in almost all European countries and it charged around 60 % and more royalty. This patent was challenged jointly by The IJMA, JMDC and Indian Jute Industries Research Association after they learnt from a firm which was billed by Geohese to pay royalty for using hessian cloth for covering waste. JMDC and others in consultation with the Patent Attorneys, S. Majumdar & Co. and their associate Attorney in the UK, Roberts & Co., challenged the Geohess patent on grounds of lack of novelty and lack of inventive merits. Geohess exclusively sold about 4.5 million sqm hessian for use as covers for waste and dumping grounds and about 1.1 million sqm as grant of license, though the patent was initially granted on June 1999. Geohess, taking advantage of global environment concerns and anticipating a huge market demand for biodegradable covers for waste filed an application in 1994 claiming novelty and inventive merits in use of hessian, a variety of jute cloth. Geohess granted European Patent No. 0728048, the use of hessian cloth / sheet to cover waste/dumping grounds. The provisional patent right on pending European patent applications allowed in some EU countries enabled Geohess patent in Europe.

Case 5--TVS Motor Co. Ltd. Vs Bajaj Auto Limited

Bajaj Auto in 2007 filed suit against TVS, for violating Bajaj's patent on certain small engine technology and court also in its initial round of investigations stopped TVS Motor from making an selling its flashy 125cc flame motorcycle. The charge is that TVS pinched Bajaj's Digital Twin Spark Ignition (DTSi) technology for its new 125cc bike called the Flame. DTSi technology that was used by Bajaj for Pulsar and Discover models was registered in July 2002 under the Patent No. 195904. DTSi technology uses two spark plugs at the two ends of the chamber. The patent violation by TVS related to terms of the purpose for which it was being used, the manner in which it was done, and the kind of customers who were being targeted. The TVS model Flame is being powered by an engine using CC-VTi technology. The battle is still going on.

Case 6--Infosys Vs Infosys France

Indian IT giant Infosys may be forced to call it in some other name in France, as a court found that it infringed upon the trademark as well as business and corporate identities of another firm "Infosys France". "Infosys France" is a technology and consulting firm based in France and is part of an integrated management consulting services .provider "Groupe Infodis." Infosys told that the ruling in France, or a similar ruling in any jurisdiction where it operates, "could disrupt our ongoing business, distract our management and employees, and affect our future business." Infosys further added that the ruling in France, or a similar ruling in any jurisdiction where it operates, "could disrupt our ongoing business, distract our management and employees, and affect our future business."

Expectations from Government of India

To meet challenges faced by Indian Industries and general public, Government of India should provide needed assistance to Indian Patent Administration to come up with more Patent Offices in the major cities like Ahemdabad, Bangalore, Hyderabad and Lucknow. All Patent Offices must be digitized, well connected and should provide speedy online access of the data in public domain. Patent examiners must have access to all the databases spread across the world to make the search more meaningful and to make sure that "Good Patents" being granted. The Patent Office must provide easier access to Patent Database of all granted patents and published applications with it like USPTO. Such a database should be searchable, error-free and must have the entire text. The partnerships between Public and Private sectors should be developed to motivate patenting and speed up the granting process. Coordination committees should be formed to study success stories and to implement lesions learnt in other needy domains.

VIII. CONCLUSION

This paper indicates the history of the Intellectual Property Regime and the growth of patenting regime in India for the past 150 years. The involvement and concerns of Government of India in the growth and protection of Patent regime have been discussed. The various changes in the Indian patent regime for the past three decades have been dealt in detail and also their impact discussed with statistics. The various reforms have been undertaken by the Government of India for the past five years and their impact in the patent filings is also shown. The awareness and interest on patents among Indian nationals and organizations towards protecting nation's rights stated with battles won by Indian Organisations in USPTO and EPO for Basmathi Rice, Neem, Turmeric and Jute cases. Eventhough India has amended thrice it's patent laws, it is still far behind compared to developed and nations like China in filing and protecting rights of the innovations. The continuous reforms by Government of India and other organizations with the involvement of private players would strengthen Indian Patent Regime and would improve the filing rate in the next five years.

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Websites : www.nie.in,

www.csir.res.in,

www.ibm.com,

www.wipo.int,

www.patentoffice.nic.in,

www.ciionline.org,

www.dipp.nic.in

R. BALAMURUGAN & R. RADHAKRISHNAN

Anna University Coimbatore, Coimbatore, Tamil Nadu, India