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A Closer Look at Patent Registration Strategies

In the dynamic landscape of intellectual property, India’s emerging role in research and development is shaping global patent trends. This article delves into the nuances of India’s patent framework, highlighting key strategies for businesses, inventors, and policymakers.

India’s Growing Patent Landscape

India’s robust history of science and innovation positions it as a key player in the global patent arena. With a focus on fostering a knowledge economy and supporting startup environments, the nation has witnessed a significant surge in patent filings. In the last reporting year, there was a remarkable 13.57% increase in patent filings, with domestic applications constituting 44.41% of the total. This surge, particularly in tech fields like computer science and engineering, underscores India’s trajectory in technological development.

Despite this progress, India faces stiff competition globally, lagging behind leaders like China, the United States, Japan, and Korea. In 2020, India accounted for only 3.8% of all patent filings globally, emphasising the need for strategic patent registration to bolster innovation and economic growth.

Strategic Considerations for Patent Registration in India

Several factors influence patent registration strategies in India:

Market Dynamics and Consumer Base:

  • Leverage India’s large and diverse population to drive research and development, catering to local needs.
  • Patenting for the Indian market provides a competitive edge.

Competitive Landscape:

  • Navigate the growing economy by protecting innovations from global and local competitors.
  • Patent protection becomes crucial to maintain market exclusivity.

Innovation and Research & Development:

  • Align patent strategies with India’s economic growth, focusing on sectors like IT, pharma, biotech, and renewables.
  • Explore patenting as a means to encourage and protect R&D investments.

Licensing and Collaboration:

  • Tap into India’s market growth through local partnerships.
  • Licensing agreements and collaborations safeguard intellectual property rights.

Counterfeiting and Piracy:

  • Strengthen patent plans to defend against counterfeiting risks in a rapidly growing economy.
  • Protect brand integrity and market share through robust patent strategies.

Global Expansion:

  • Consider international patent protection to safeguard innovations not only in India but also in key global markets.

Policy and Regulatory Changes:

  • Stay updated on evolving IP laws in response to India’s shifting economic landscape.
  • Adapt patent strategies to align with regulatory changes.

Cost Considerations:

  • Leverage India’s affordable R&D for cost-effective patent plans.
  • Optimise patent filings globally based on business goals and budget considerations.

Market Entry Timing:

  • Strategically time patent filings to coincide with product launches or market entry for optimal protection.

Navigating India’s Patentability Criteria

Understanding India’s patent laws is crucial for navigating patentability criteria. Key aspects include novelty, inventive step, industrial applicability, subject matter eligibility, exemptions for software and business methods, sufficiency of disclosure, filing requirements, priority claims, patent examination and opposition, term of patents, compulsory licensing, and parallel imports.

The Role of the National Biodiversity Authority (NBA)

For patents related to biological resources, India’s National Biodiversity Authority plays a crucial role. The NBA regulates patents to protect local biodiversity and ensure fair benefit-sharing. The process involves checking if an invention uses bio-resources, obtaining prior informed consent, negotiating ABS agreements, and complying with reporting requirements.

Software-Related Inventions in India

The patenting of software or computer-related inventions (CRIs) in India requires a demonstration of technical progression. While stand-alone computer programs are generally not patentable, those with a discernible technical effect may qualify for patent protection. The Ferid Allani case judgement in 2022 clarified patentability standards for software-related inventions, aligning them with global norms.

Expedited Examination Strategies

To expedite patent examination in India, applicants can request expedited examination under Rule 24C. Conditions for expedited examination include designations as the international searching or preliminary examining authority, start-up status, national emergency, applicant’s gender, or government department affiliation. Additionally, the Patent Prosecution Highway (PPH) offers a streamlined process for faster decisions.

Foreign Filing Licences and Third-Party Opposition

Navigating foreign filing licences is crucial for multinational corporations, ensuring adherence to India’s national interests before filing patents abroad. The Indian patent system allows third-party opposition through pre-grant and post-grant oppositions, ensuring a rigorous screening of patent applications and grants.

Expected Rule Changes in 2023

Proposed amendments to the Patent Rules 2003 aim to enhance the efficiency of the patent application process in India. Changes include a reduced request for examination timeline, provisions for voluntary filing of divisional applications, mandated disclosure of foreign filings, controller access to foreign patent processing information, enhanced clarity on patent application abstract requirements, and a six-month grace period for restoration requests.

Implications for Patent Applicants

Prospective patent applicants should stay informed about the proposed rule changes, strategising accordingly for prompt action, increased flexibility in patent protection, scrutiny of foreign applications, and adherence to foreign filing licence requirements.

Monika Shanmugam