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A remarkably simple and
innovative exercise has been launched in the US in order to cope with the
overload of patent applications. Given the growing emphasis on knowledge
creation and knowledge ownership as key underpinnings of the global economy, the
world is moving towards sequestering knowledge rather than sharing it. The
expected outcome of this trend is a spurt in patent applications in all the
major patent offices of the world. India too registers a sharp increase over an
admittedly small base. An overload of patent applications leads to delays and
inadequate scrutiny of the application, leading to incorrect patent grants and
subsequent litigation.
The US Patent and Trademark
Office (USPTO) has started a novel experiment at the initiative of Beth Noveck
of the New York Law School to tackle problems of overload. The project called
‘Peer to Patent’ seeks to open up the patent examination process to the public.
It has begun a pilot project to post patent applications on a designated website
and invite public comments on the merits of the patent.
The crux of patent examination
is to search for ‘prior art’. This means to examine whether the claims made in
the application have already been patented before or whether they are known in
the public domain. By involving hundreds of reviewers and tapping their
knowledge and expertise, the examination for prior art becomes much faster and
more comprehensive. The hope is that an expanded screening exercise of this
kind, will lead to fewer patents that are granted incorrectly and reduced
litigation over patent grants.
For the US, an obvious case
where a ‘Peer to Patent’ approach would have been useful, is the case of the
turmeric patent. The grant of the patent on turmeric derived properties by the
USPTO, became the subject of litigation between India and the US. The Haldi
Patent
was successfully challenged by
the Indian government but at some cost to the public exchequer. Perhaps if this
patent application had been subjected to scrutiny on a public review website
like Peer to Patent, an opposition would have surfaced during the patent review
process and the patent would never have been granted. This would have certainly
saved India a lot of money.
Indian patent offices would do
well to emulate the US initiative. They are more overstretched than most patent
offices partly because India has had a history of knowledge creation in the
public domain so patenting is new business. The ‘patent everything in sight’
culture is only beginning now. Our patent offices are notoriously short of
trained manpower to deal with the sudden increase in applications arising out of
new legislation like the amended Patent Act and the Act on Geographical
Indications. Regardless of the merits of the patent-at-all-costs approach that
is being promoted in Indian research institutions, we need to be equipped to
deal with the surge in patent applications. Instead of the expensive and time
consuming process of routing applications through patent examiners, a first
round evaluation through the public review process will identify the cases that
do not qualify on grounds of novelty, distinctness and utility. These are the
essential benchmarks of patentability. After this filtering, only those
patent-worthy applications need go up for critical examinations.
The public review process is
welcome from another perspective. It introduces an open source approach as a
contrast to secret government procedures, secrecy being the hallmark of the
Indian government’s performance in all sectors. Opening up the patent sector
will also help to demystify the still new patent culture in this country and get
more people involved in discussing its merits or otherwise. It will also help to
introduce greater vigilance with respect to old problems like biopiracy and the
misappropriation of indigenous knowledge. One impediment could come up though.
For this process to succeed, the patent applicants must be willing to go along
with the process.
So far, in the US it is only
software and hardware applicants that are willing partners in this novel
exercise. It remains to be seen whether the biotechnology patent applicants,
largely the Life Science corporations are as enthusiastic. These corporations
have been notoriously reluctant to share any information, even with government
agencies, unless absolutely necessary. India should quickly begin discussions to
set up a similar system in the patent offices here. Any fears that the public
scrutiny can lead to frivolous interference should be dealt by vetting the
registered users and ensuring that oppositions to the proposed patent claims are
accompanied by well researched and properly backed up evidence. Since the patent
application is put on a publicly accessed website, there should be no fear of
misuse by competing interests since such would be quickly detected by the same
examination process.
Suman Sahai |
