Grant of Patents: Indian v. Foreign Applicants

May 4, 2021
Defense in Commercial Suits

By Sukku and Swaraj Singh

As per an overview of the statistical data of last 10 years provided by the World Intellectual Property Organization (WIPO), it has been deduced that scientists and innovators tend to have more success in securing patents when they file applications abroad. On an average, four out of every ten patent applications filed by Indian applicants outside India are granted, whereas, in India, only one out of every ten patent applications filed is granted.

Experts and analysts attribute this pattern to a number of factors, including slow disposal, indiscriminate filing, and the low cost of registering patents.

As per reports, the process of filing and prosecution of a patent in India is exhaustive and usually takes a minimum of four to five years to receive a grant of patent. Another reason may be that, many applications in India are filed to pip competition and obtain an advantage of first filing, for example provisional application filing, and thereafter applicants take more time to file the complete specification with claims. One more explanation may be that, claims when filed overseas are more seriously taken due to the higher cost of the process.

According to the data acquired from WIPO, 1.2 lakh patent applications have been filed in India between 2010 and 2019, and only 13,670 received grant of patents. In contrast, 1.07 lakh Indian patent applications filed abroad and 44,477 were granted patent.

Patent Applications filed by Indians

Year Filed in India Granted % Granted Filed Abroad Granted % Granted
2010 8,853 1,208 13.6 6,017 1,927 32
2011 8,841 776 8.7 7,056 2,105 29.8
2012 9,553 722 7.5 8,648 2,891 33
2013 10,669 594 5.5 10,237 3,758 36.7
2014 12,040 720 5.9 10,404 4,292 41.2
2015 12,579 822 6.5 11,411 4,999 43.8
2016 13,199 1,115 8.4 12,654 5,582 44.1
2017 14,961 1,712 11.4 13,048 5,800 44.5
2018 16,289 2,311 14.8 13,746 6,039 43.9
2019 19,454 3,690 18.9 14,561 7,114 48.8
Total 1,26,438 13,670 10.8 1,07,782 44,477 41.2

Though, in the last five years, year-over-year data indicates an improvement in disposal of patent applications and grant thereof. For example, only 5.5% and 5.9% of applications were awarded patents in 2013 and 2014, respectively, the same percentage increased to 14.8% and 18.9% in 2018 and 2019, respectively. Still, it is a point of consideration that the performance rate difference continues to persist as 43.9% and 48.5% of applications filed abroad received grant in 2018 and 2019, respectively.

Another statistics of the last 10 years show that foreign innovators have filed over 3.2 lakh patent applications in India and 76,637 have been granted in that duration. Therefore, compared to domestic innovators, foreign innovators continue to file more applications as the foreign applicants hold a better chance of obtaining a patent in India, which is on an average 23.4% of the applications filed by them in last 10 years as compared to the bare minimum of 10.8% filed by the domestic innovators.

Nonetheless, the number of filings and the percentage of grants have steadily increased since 2016 as the Indian government has undertaken numerous measures to raise awareness and keep up with the exponentially increasing rate of technological advancements. The Central Government has implemented a number of policies and reforms to support domestic innovators, some of which have been enumerated below:

Start-Up Initiatives by Government of India

  1. The government launched a Scheme for facilitating Start-ups Intellectual Property Protection (SIPP) to provide domestic innovators with high-quality IP services and tools to protect and commercialise their innovations. Furthermore, under the scheme of SIPP, IP facilitators were empanelled for assisting start-ups protecting their IP without charging any professional fee for providing services such as advising, drafting, filing and disposing off their IP applications. The said professional charges, as per specified fee structure by SIPP, is paid to the facilitator by the Central Government.
  2. The Patents Amendment Rules, 2016 were adopted, introducing start-up as a new category of applicants where the official charges imposed by start-ups were reduced by 1/5th, same as those imposed by individuals. In addition, an option for expedited examination has been provided to some categories of applicant including start-ups, where the First Examination Report (FER) has to be issued by Controller within 3.5 months from the date of filing of request for expedited examination (Form 18A).
  3. The government has also made changes In Indian Patents Rules to speed up the process of patent prosecution by reducing the time for filing a FER response to 6 months from 12 months for all the patent applications, where FER is issued on or after May 16, 2016.
  4. The government has introduced new rules governing fee refunds, which allow applicant to claim 90% of fees paid for request for examination or expedited examination, by filing a request for withdrawal of application (Form 29) before the issuance of FER.
  5. The government launched another scheme, Support for International Patent Protection in Electronics & Information Technology (SIP-EIT), run by Ministry of Electronics & Information Technology for providing financial support to MSMEs and Technology Start-up units for filing patent application outside India. According to the SIP-EIT scheme, the government will cover specified percentage of expenses such as official fees incurred for filing, examination, processing fees, expenses on search, attorney charges, and cost of translation incurred while filing applications up to grant in a foreign country by the domestic innovator, either directly after satisfying the requisites of Section 39 or within 12 months of filing the application in India.

With respect to the above-mentioned amendments and new regulations, the government has implemented various other IP policies to protect the interests of IPR owners. As a result, the landscape of patent filing in India has changed drastically in the last four to five years.

To increase the number of filings and raise IP awareness, the government is continuing to make efforts and implementing various changes in current policies to protect domestic innovators’ technological developments, time, and resources. We can expect a boom in the IP sector in the coming years in India, provided with the numerous benefits and incentives provided by the government in the event of patent filing.

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