The Indian Patent Office is administered by the Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM). This is a subordinate office of the Indian government and administers the Indian law of Patents, Designs and Trade Marks.
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The CGPDTM reports to the Department of Industrial Policy and Promotion(DIPP) under the Ministry of Commerce and Industry and has five main administrative sections:
The patent office is headquartered at Kolkata with branches in Chennai, New Delhi and Mumbai, but the office of the CGPDTM is in Mumbai. The office of the Patent Information System is at Nagpur.
The Controller General, who supervises the working of the Patents Act, the Designs Act, and the Trade Mark's Act, also advises the Government on matters relating to these subjects. An IAS officer, Mr. P.H.Kurian is now the Controller General. Under the CGPDTM, a Geographical Indications Registry has been established in Chennai to administer the Geographical Indications of Goods (Registration and Protection) Act, 1999.
The Indian Patent Office has 75 Patent Examiners, 70 Assistant Controllers, 7 Deputy Controllers, 1 Joint Controller, and 1 Senior Joint Controller, all of whom operate from four branches. Although the designations of the Controllers differ, all of them (with the exception of the Controller General) have equal authority in administering the Patents Act.
The unwarranted promotion of many Examiners as Assistant Controllers has further led to an imbalance in the set-up of the Patent Office, thereby disrupting the normal functioning of the organization . Now there are more supervisors(Controllers) than workers(Examiners).[1][20].
An Indian Patent Examiner is mandated to search for prior art and for objections under any other ground as provided in the Patent's Act ,to report to the Controller, who has the power to either accept or reject Examiner's reports.Unlike the USPTO /EPO/JPO , Examiners at IPO have only recommending power and the controllers are empowered by statute either to accept or refuse the recommendation.(Sections 12 -15 of the Patent's Act, page 100,Item 8.04.10 of Patent office manual).Examiner's report to Controller are not open to public unless Court's allow (section 144 of the Patent's Act).A Parliamentary committee has recommended for repealing S144 [21].
Examiner attrition seems to be issue with the Office.[2][3] Despite the attrition the number of first office actions have increased from 2004-05 probably due to increased output from the Office.[4] The Controller General, Mr.P.H.Kurian, in an interview, has promised time-bound promotions to Officers and recruitment of new Examiners. This may mitigate the crisis of lack of officers and the problem of attrition due to low pay and lack of promotion. There are around 75 examiners who have been languishing in the same post without promotion for over 8 years from 2003 onwards.[5]
A recent report of a concerned government official has recommended outsourcing of search in view of increased work load .IPO has started to outsource prior-art searches [22].
According to Indian newspaper Mint, Indian patent examiners have the world's highest workload and lowest pay. While a patent examiner in the European Patent Office would handle less than seven patent applications per month and a USPTO examiner would handle eight applications per month, an Indian examiner reportedly handles at least 20 applications a month. However an Indian examiner’s monthly salary is less than a third of his/her counterparts in other foreign patent offices.[23]
The Indian Patent Office has implemented a modernization program according to an Indian govt website. And according to this website "Efforts have been made to improve the working of the Patent Offices within the resources available and that the problem of backlog is also being attacked through 50% higher monthly target for disposal of patent applications per Examiner".[6] Full text of Indian Patents are now available along with prosecution history [24],[25]. E- Filing of Patents & Trademarks is made possible and according to an Indian Minister the first phase of the modernization comes to an end and the Indian Patent office wishes to be an International search Authority.[7] The second phase of modernization has been proposed with the aim of achieving US patent examination efficiency among others.[8] Patent filings during the year 2007-08 were 35000.[9]
The Ministry of commerce has come out with a discussion paper in order to address the issues plaguing the Indian Patent Office. Granting financial and administrative autonomy, Separation of Patent and Trademark offices, setting up of additional offices are some of the issues put forth for input from stakeholders.[10]
Amendments (in 1999, 2002, 2005, 2006) were necessitated by India's obligations under TRIPS, allowing product patents in drugs and chemicals. Another important feature was the introduction of pre-grant representation (opposition) in addition to the existing post-grant opposition mechanism. The pre-grant representation has had success in a short span. One example is the abandonment of a patent application by Novartis on Glivec (Imatinib Mesylate), revoking the earlier granted EMR on the same drug used to treat Leukemia.[11]
A controversial provision of this amendment was on software patent-ability, which was later withdrawn in another amendment (Patents Act, 1970, as amended by Patents (Amendment) Act, 2005). It is clear from the legislative history and interpretation of provisions in the Patent Act, 1970 (as amended in 2005) that the Patent office should not allow intrinsic patent-ability of computer programs.[12] But there is evidence suggesting that the Patent office has acted otherwise.[12] Patent Rules 2003 were amended in 2005 and again in 2006. Some of the important features of both the 2005 & 2006 Rules are the introduction of reduced time lines and a fee structure based on specification size and number of claims, in addition to a basic fee.
'Though clause (k) of Section (3) of the Indian Patent Act holds computer programmes 'per se' or algorithms as non-patentable, technical 'application of software' or 'software combined with hardware'[13] including embedded systems, may be granted patent' according to R S Praveen Raj, former patent examiner from Indian Patent Office.
Term of every patent in India is 20 years from the date of filing of patent application, irrespective of whether it is filed with provisional or complete specification. However, in case of applications filed under PCT the term of 20 years begins from International filing date (See No.41 of FAQs on Indian Patent Office website).[14]
India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection) Act, 1999 has come into force with effect from 15 September 2003. GIs have been defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement as: “Indications which identify a good as originating in the territory of a member, or a region or a locality in that territory, where a given quality, reputation or characteristic of the good is essentially attributable to its geographic origin.”[15]
The GI tag ensures that none other than those registered as authorised users (or at least those residing inside the geographic territory) are allowed to use the popular product name. Darjeeling tea became the first GI tagged product in India, in 2004-05, since then by September 2010, 132 had been added to the list, this include, Salem Fabric, Kancheepuram Silk Sarees, Madurai Sungudi Sarees, Bhavani Jamukkalam, Coimbatore wet grinders, Bikaneri Bhujia from Rajasthan, Guntur Sannam chilli, Tirupati Laddu,[16] Hyderabadi haleem and Gadwal sarees from Andhra Pradesh, Nashik valley wine, Mahabaleshwar strawberry and Paithani sarees from Maharashtra, Kinnauri shawl from Himachal Pradesh, Kasaragod sarees and Kuthampully sarees from Kerala, Sandur Lambani embroidery and Kasuti embroidery[17] from Karnataka, and Banarasi brocades and sarees and hand-made carpet from Bhadohi in Uttar Pradesh.[18][19]
Other GI patented items from Karnataka include: Ilkal sarees, Channapatna toys, Hoovina Hadagali jasmine, Monsooned Malabar coffee, Monsooned Malabar Robusta Coffee and Coorg Green Cardamom, Molakalmuru sarees, bronze ware, Navalgund Durries, Mysore Ganjifa cards, Mysore silk, Mysore agarbathis (incense sticks), Bidriware (metal design), Mysore rosewood inlay, Mysore sandalwood oil, Mysore Sandal Soap, Mysore traditional paintings, Coorg orange, Mysore betel leaf, Nanjangud banana, Mysore jasmine and Udupi jasmine.[15]
As per An Indian patent Attorney in a Leading IP magazine, patents which were beyond the Act were granted by the Office.[20] The Indian Patent office seems to have unusually high grant rate (refer to page 14 of the patent office annual report[21] for the year 2005-06 in respect of number of refused patent applications), compared to other major patent Offices (EPO annual report for 2006, p22), and indicates the complete failure of the "well established" quality assurance systems covering the patent granting procedures.[22] The reason behind this is attributed to the fact that a majority of patent applications filed in India are PCT National Phase cases which have an International Search/Examination report. Therefore it is easy for Controllers to decide on granting a patent for the application.This is not the case in well established Patent offices of developed countries where a majority of the applications are local(ordinary) applications. Here a search has to be carried out and based on the documents recovered during this search, the final outcome of the application is decided. Hence there can be no comparison with the number of cases examined and granted in India and abroad. Further, the monthly target for Indian examiners is 16 new applications per month (in addition to amended applications and other responsibilities) as compared to a maximum of 5 abroad. More importantly, the Indian Patent Office strictly has only 12 months to grant/refuse the application as compared to foreign patent offices where applicants can extend the final date indefinitely. Knowledge commission, an Indian govt appointed body has recommended measures regarding the functioning of the Office.[23] Recently the patent grant of a pharma drug has attracted attention.[24][25] It should also be noted that the Patent office has not come up with final guidelines (Manual of Patent Practice and Procedure). It is unclear whether the patent office is still revising its draft manual which is kept for public inspection since 2005. A Delhi high court judgment has found that the Indian Patent Office has followed a lowered inventive step criterion (TSM method)in respect of a cancer drug patent.
The patent office is also not enforcing the rules and regulation mentioned in the act.
According to the section 24 of patent act "The period for which an application for patent shall not ordinarily be open to public under sub-section (1) of section 11A shall be 18 month from the date of priority. The controller shall publish the application in the Journal shall ordinarily be one month from the date of expiry of said period, or one month from the date of request for publication under rule 24-A"
The rules are un-clear and there is no fixed action stated. The word "shall" is been used as a protection shield by the Patent office and has never published any of the application within one month from the date of request or expiry of said period. This is one of the examples, many more can be listed. It seems to be that Patent Office is biased.
Generally, the time taken by the Indian Patent Office (IPO) to grant a patent is around 3–4 years from the date of first filing. US Attorneys are behind USPTO to reduce the 2 years period taken by the USPTO.
Allegations of corruption, bribery and nepotism against higher officials of the Indian patent office have emerged from Arijit Bhattacharya, a former Controller of the Kolkata Patent Office [26].
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