Delayed patent examinations stifle inventors- QHN

Mohan Jindal, a Bengaluru-based entrepreneur says he will need to be patient enough for at least a year to hear back about his two recent patent applications on cutting-edge technology for semiconductor security and performance. Experts say such delays in the patent examination may become a speed bump for Indian innovators if not improved soon.

According to a recent study by tech industry body Nasscom, the average pendency time for a final decision on patent applications in India was around 50 months, as per the latest data of 2021. The pendency time in India is three times more compared to Japan.

For Jindal, who runs a hardware security startup Chipspirit Technologies, this was his first experience with Indian patent filing. Jindal says the solution was developed a year ago, but the legal, financial, and other technical requisites for filing the patent, while managing the day-to-day business of the firm took it till March this year to draft the application.   

“Big companies have a team of well-experienced internal legal teams. This gives them an advantage over small startups right from the stage of invention disclosure. For us, it took around a month to get our application vetted by our lawyer. For technologies like semiconductor security, raising the level of expertise at all levels,” he said.

Dev Robinson, National Practice Head for Intellectual Property Rights at law firm Shardul Amarchand Mangaldas & Co. says delayed processing can be hurtful to certain applicants, especially in cases where inventions are commercially viable only for a short period.

“Since infringers cannot be sued while a patent application is pending, delayed processing can be economically detrimental. Small organizations are likely to feel the heat more than large entities. Consequently, innovation is negatively impacted,” Robinson said. He added that the period of patent prosecutions gradually shortened after the enactment of Patents (Amendment) Rules 2016. 

The Nasscom study adds that the Indian Patent Office has become “very proactive over the last few years”, but lack of expertise, certain legal clauses delaying the process, and cost overruns for patent filing remained top challenges for stakeholders. Experts on intellectual property (IP) rights say the lack of personnel skilled in rapidly changing technologies was the key reason for delays in the processing of patent applications in India.

“It is interesting to note that, per publicly available information, as of 2020, there were more than 160,000 pending patent applications in India with only 858 examiners available to cater to the same. Until 2016, the number of examiners was limited to 280. However, the recent trends show that the Indian Patent Office is actively training and hiring young patent personnel for a more vigorous patent processing ecosystem,” said Bharadwaj Jaishankar, Partner at IndusLaw.

Jaishankar said the delays in the prosecution of patents make the possible grant of a patent uncertain and may have a potential knock-on effect on investments. He added that the time taken between developing the invention and the actual grant of patent risks the invention or even parts of it obsolete, making the commercialization of the product more challenging.

Total patent filings in India grew 13.6 per cent year on year in FY2022 – the highest annual increase in the last decade, according to Nasscom’s study. More than 50 per cent of all technology patents filed between FY2010 and FY2022 came from emerging technologies like AI, IoT, Big Data, Cybersecurity, and Blockchain.

“One of the most deleterious effects of patent process delay is that it can stifle innovation and discourage inventors as they may find it taxing to seek legal protection and recognition for their invention. Thus, it is very important to expedite the patent approval procedures to spur startup growth.”

Out of some 584,000 patents filed in India between FY2010 and FY2022, 266,000 were from the technology sector. Pattern analysis and image analysis has emerged as an important area in patent applications, accounting for over 28 per cent. Several Blockchain-related patents witnessed the highest CAGR of 25 per cent during the 12 years.

According to a PTI report, the government is revamping the patent office functioning to reduce the massive backlog in granting official recognition for innovations by adding manpower and changing the legislative framework. The government is fast-tracking the hiring process and promotions of some existing officers.

According to Jaishankar, streamlining the patent examination process by bringing in stringent deadlines and compliance rules can also be a boon for the applicants. A provision for expedited processing of patent applications similar to the one available at the US Patent Office could ensure a prioritized examination program upon payment of additional fees.