Patent litigation in India – uncommon and in need of reform?
Tarun Mathur’s report on Patent Litigation Trends in India has some interesting findings, including:
- although the number of patents filed in India is continuing to grow, the number of decided patent litigation suits is quite low – about 1 per year over the past 20 years;
- there have only been 8 decided cases in total since 2000;
- (if you believe there’s sufficient data to tell), then overall the Indian courts seem to be anti-patent, with 33 decisions against patentees and 14 for them;
- most Indian patent litigation has involved small entities;
- surprisingly, litigation tended to occur early in the life of the patent (typically within the first 5 years) [presumably this is linked to the item immediately above];
- patents with more claims were more likely to be the subject of litigaiton.
The report provides a lot of useful background about patent litigation in India and the applicable law.
The report makes the following recommendations for change (with my comments ‘>>’):
- creation of a specialist patent court (along the lines of the US CAFC);
>>There don’t seem to be enough cases to justify this at the moment.
- the public should be allowed to observe patent trials;
- a panel of judges should be used in each patent case;
>>Seems expensive and wasteful of judges’ time. But then again, there aren’t many cases…
- patent law should be a compulsory unit in law courses;
>>I’m not sure that there’s a sufficient body of cases or law for it to be necessary for all lawyers to have studied patent law. Even in countries with much higher patent litigation rates (such as the US or Netherlands, it is not compulsory.)
- steps should be taken to strnegthen the ability to enforce patents in India.
>>This is a long-term economic argument that is still raging (see for example the current litigation over section 3(d) in relation to Gleevec). Many people would agree that the less favourable environment for patents has been a real part of the success of the Indian pharmaceutical industry.