An Ode to the Odyssey that is Patent

India is, in the true sense of the phrase, a “rising star” when it comes to innovation growth in the Intellectual Property sector. The economic solidification of a country rests on several pillars, of which, policymaking is the foundation. Developing countries such as ours have come a long way since the ratification of the WIPO Treaty in 1995, which effectuated separate legislation for the regulation of patent, copyright, and trademark, leading to an entrepreneurial spurt. This achievement through guaranteed strong IP protection and sustained economic advancement has equipped India to rise to the 36th Rank in the US Chambers of Commerce’s Intellectual Property Index (2019)[1].

With the advent of WIPO, a surge of applications was observed in the Patent Cooperation Treaty, Madrid System (Trademarks), and the Hague System (Designs); with patents observing an all-time highof253,000 applications in 2018, showcasing a steady increase of 3.7% since the previous year[2]. Lead by the US; India and China were the only two Asian countries amongst the top-15. Even though India saw a 27.3% rise that year, China’s applications surpassed India by several yardsticks, where India saw around 2,000 filings compared to China’s 53,345 applications.

It is quite evident that China single-handedly leads Asia to dominate the patent pool while India’s contribution is drop-sized. Besides receiving a few applications, the Indian Patent Offices are infamous for fewer grants. Specifically talking, trademarks see the highest success rate of being granted. According to WIPO in 2017, trademarks saw a whopping quarter of a million applications (271, 972) including Resident and Abroad based while patents recorded 27,985 applications[3]. Surpassing a 6% grant rate, 2017 saw 1,712 successful grants, which were the third highest in a decade. Interestingly Non-Residential filings received were 31,621 in the same year, twice of domestic filings with a third of them being granted (10,675)[4].

Numerous factors play a role in the granting of a patent, which ranges from strict pre-requisites such as novelty, industrial applicability to the steep filing, and examination fees. Moreover, the requirement of a patent agent is crucial for legal compliance. Besides the bifurcation between e-filing and physical, fees are different for an individual inventor, a start-up, and a company, including fees deferring based on the number of claims and pages in the specification. Costs range easily from Rs.40, 000 – 60,000, going up to one lac in case of a company. Requests for the examination can cost anywhere from Rs.4,000 to Rs. 30,000. For any patentee, it is crucial that the patent is granted as soon as possible and is protected for the longest duration. Renewal costs can increase 3-5 times depending on the year in which the renewal is sought[5]. Thereby, making patents one of the most expensive yet sought-after rights.

Grants are fewer in comparison to other IP rights since the processing of an application itself is lengthy,  with complete specification having a filing window of 12 months since provisional specification. This is followed by the publication of the application and request for examination by Expert. After a considerable amount of time and investments, the plight of applicants isn’t over for is not uncommon for applications to get flagged at this stage. The public database is thoroughly searched for prior inventions, and even patents granted, provision for further opposition can swindle the fate of an applicant. Hence, the drafting of the application is crucial for a prospective patentee.

Expertise in describing the specifications of a prospective invention such as drawings, sketches, and diagrams besides the claims is a tedious task, which is where a patent agent’s significance comes into play. Seldom applicants are competent to describe the technical aspects without circumventing the legal provisions.  Professional patent agents/attorneys charge a hefty fee, which could go up to Rs. 50,000for drafting and conducting a prior novelty search for their clients[6]. Selecting the right patent agent is like selecting the right shoe, it is imperative it fits according to our comfort and convenience.

Recently emphasized in an article by Carlo Cotrone, one can witness in a satirical way, the sour relationship between a client and his IP attorney[7]. Aptly put across, the one-sided efforts, lack of initiative, and a constant wait for the other shoe to drop is bound to repulse a client. In spite of filing over 2,000 applications last year, the success rate dwindles in single digits. Moreover, top applicants are scientific and pharmaceutical organizations who can afford to dispose of patent agents as per their whims. Nonetheless, it is crucial that individual inventors are given the right guidance, with the support of updated governmental policies to secure their hard work and money in this odyssey of patent grant. The importance of innovation cannot be undermined in this day and age. Uniqueness inspires and drives millions to turn their ideas into inventions, thus, helping our nation grow as the next superpower.

Author: Isha Tiwari, B.Com. LLB, Amity Law School, Noida, Intern at IP and Legal Filings  and can be reached at support@ipandlegalfilings.com.

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References:

[1]U.S. Chamber Releases 2019 International IP Index; “www.uschamber.com”;https://www.uschamber.com/press-release/us-chamber-releases-2019-international-ip-index; accessed on August 12, 2019

[2] WIPO 2018 IP Services: Innovators File Record Number of International Patent Applications, With Asia Now Leading;” www.wipo.int”; https://www.wipo.int/pressroom/en/articles/2019/article_0004.html; accessed on August 12, 2019

[3] Country Statistical Profile: India;”www.wipo.int”; https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=IN; accessed on August 12, 2019

[4]Ibid

[5]First Schedule – Indian Patents Act, 1970 (PDF); “www.ipindia.com”; http://www.ipindia.nic.in/writereaddata/Portal/IPOFormUpload/1_11_1/Fees.pdf; accessed on August 13, 2014

[6]Karhad, Prasad; “What is cost of patent registration in India?”; “www.patentindia.com”;https://patentinindia.com/cost-patent-registration-india/; accessed on August 13, 2019

[7]Cotrone, Carlo, “Dear Law Firm: An IP Client’s (Satirical) ‘Love’ Letter”; “www.ipwatchdog.com”https://www.ipwatchdog.com/2019/07/26/dear-law-firm-ip-clients-satirical-love-letter/id=111266/; accessed on August 13, 2019–>

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