Working of patents is an integral element of the Indian patent system. In line with the primary objective of patent law, which is to promote the progress of science and technology for public good and economic progress, Indian patent Act specifically mandates working of patents in India. Failing such working, a compulsory license may be granted with respect to a patent , or in the worst case scenario, the patent may be revoked. (See CHAPTER XVI-
WORKING OF PATENTS,COMPULSORY LICENCES AND REVOCATION, Patents Act, 1970.)
It was reported that a PIL was filed for strict compliance of the requirement to submit working of patent statements to the patent office, in response to which the Delhi High Court has issued a notice to the Government to submit a response. The PIL was claimed to be filed based on findings by a research team that many patentees do not file statements of working, and that the patent office must take the said filings stringently, and implement the requirement strictly.
It is important for India to have a patent system that suits the interests of its people, and that is in tune with the country’s social, economic, ideological, and philosophical foundations. As long as Indian Patent Law complies with TRIPs and other international instruments, it does not matter what certain businesses and countries think about our patent system, and what they want to get out of it. Every country has the right to develop its own patent model that balances patent and public interests for specific outcomes.
Having said that, there is always a line beyond which the patent system is no longer meaningful, and adds no value to either patent holders or the public. Anti-patent scholars always cross that line in favour of public interest and propose models that unsettle the balance. On the other hand pro-patent businesses propose models that cross the line in favour of patent holders, and disturb the public interest objectives.
This conflict was seen with Section 3(d), Compulsory Licensing, and now, may be seen with statement of working of patents.Basic questions that come to mind with respect to the statement of working issue are:
Is filing of Statement of Working of Patents so important that it deserves attention, and action? Should the patent professionals put their pens down and start debating about this now?
On its face the answer to both questions seems – ‘NO.’
Some reasons:
Statement of working of a patent is a mere procedural requirement, and non-filing of such statements by patent holders does not mean that patents need not be worked in India.
Irrespective of whether one files a statement of working or not, if a patent is not worked in India, it may be the subject of a compulsory license, or may even be revoked. Not filing of such statements may in fact prove to be detrimental to patent holders, and beneficial to the public in some ways.
If statement of working of patents is enforced, will the invention reach the public in India?- No. Enforcing this requirement will only increase paper work, it will not bring an invention to the market. It will provide information at best, for researchers to analyze.
It is estimated that less than 0.5 percent of patents actually reach the market. Also, those which reach the market or public, do not reach as soon as the patent is granted. Some times it takes more than ten years to perfect an invention and put it in the market. How then can you file statements of working?
Most companies invest in hundreds of patents with the hope that one of them will yield results. No one can tell at the time of patent filing or grant, which one will yield the said results.
Normally, a patent portfolio is worked, and not just a single patent. In such a scenario, it is impractical to submit absolute numbers, or figures for specific patents.
It is not practical for companies to file a statement every year with respect to hundreds of their patents. The burden it will impose may outweigh the benefits offered by the patent system. Only person, who will benefit from this is the patent lawyer.
Other than the benefit of information about whether a patent is being worked or not, there is obviously no serious problem with not filing a statement of working from the public interest perspective. One may say that working of a patent is a basic tenet of the patent system, and that one has the right to know, but does that defeat the purpose of the patent system? Not at all.
If a procedural requirement is supposed to have a big public interest impact, there are several other procedural issues with the patent system that must be addressed immediately. Issues such as quality of examination, speed and transparency of the patent office, enforcement mechanisms, etc. must be addressed before getting to the statement of working filings.
Several alternative mechanisms can be adopted for ensuring that working of a patent requirement under the patent statute is safeguarded. For example, working of statements may be filed during legal proceedings rather than as a part of administrative process, working statements may be submitted on demand, etc.
For the aforesaid reasons and more, filing of statement of working does not assume the perceived importance it is being given. It does not further public interest in the manner it is being shown, and insisting on it may prove to be detrimental to the objectives of the patent system. I hope the Delhi High Court will utilize the opportunity to put an end to this insubstantial issue once for all.
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