Patenting: an Indian scenario.

Author:Balamurugan, R.
 
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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...

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