The Indian Patent Office has been time and again criticised for being extremely slow in the grant of patents[1]. According to a report by IndiaSpend, a patent application on average takes around 6 years to get approved in India[2], which is a huge deterrent to innovation and forces many applicants to abandon their applications. However, recently, The Indian Space Research Organization (ISRO) has been granted a patent by the Indian Patent Office for an “Expulsion Enhancing Device for Propellant tank” in a record time of only ‘8 months from the date of filing the patent application. The application was filed on 7th December 2020 and the patent was granted on 5th July 2021, with patent number 371127.
Expedited Examination speeds up the process
The introduction of the concept of expedited examination in the Patent rules, 2003 has facilitated the speedy grant of patents. Expedited examination essentially means that the applications for expedited examination will be allotted a separate queue, different from the queue where thousands of applications are awaiting examination, and resultantly the patent will be examined and granted faster.
When an application for a patent is made to the Patent Office, a request for an examination of the same has to be made within 48 months (4 years) from the priority date of the application or the date of filing of the application, whichever is earlier, otherwise, the application is deemed to be withdrawn[3]. However as per rule 24C of the patent rules, within the above stipulated time period, a request for an expedited examination of the application can also be made by filing Form 18A along with the prescribed fees. The concept of expedited examination was introduced in 2016 by an amendment to the patent rules 2003[4], and initially it was available only for startups and those entities which had indicated India as their competent ISA (International Searching Authority) or IPEA (International Preliminary Examining Authority), in a corresponding PCT application. The rules were further amended in 2019 to make the following categories also eligible for requesting an expedited examination[5]:
- small entity;
- In case of natural persons, if either one of the applicants is a female;
- a department of the government (see below);
- an institution established by the central, provincial or state act which is owned or controlled by the government;
- a government company;
- an institution wholly or substantially financed by the government.
Thus, ISRO being a department of the government, filed a request for an expedited examination in Form 18A, and was granted the patent in a very short span of 8 months.
This marks a huge shift from the usually slow patent grant process and may encourage more patent filings in the future. The Parliamentary Standing Committee report on ‘Review of the Intellectual Property regime in India’, presented in the Parliament on 23rd July 2021[6], has also taken note of the delay in patent grants and has suggested that the existing time limit of 4 years for filing a request for the examination should be shortened to a reasonable time frame to avoid any unnecessary delay in examination and grant of patents. It is the need of the hour that such positive changes be brought about in the Indian patent regime so that there are more expeditious patent grants.
[1] https://www.lexorbis.com/compensating-delay-in-granting-of-patents/
[2] https://www.indiaspend.com/patent-delays-threaten-make-in-india-67033
[3] section 11B, The Patents Act, 1970; Rule 24B, Patent Rules 2003.
[4] https://ipindia.gov.in/writereaddata/Portal/IPORule/1_42_1_Patent__Amendment_Rules_2016_16May2016.pdf
[5]https://ipindia.gov.in/writereaddata/Portal/Images/pdf/patents_amendment_rules_2019.pdf
[6] https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2021_7_15.pdf
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