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Kandarp Vanita
| Updated: 24 Feb, 2021 | Category: Patent

Patent Term Extension in India: Affect & Criticism

Patent Term Extension in India

A patent is an intellectual property right exclusively granted to the inventor on patent registration for an invention made by him which is a patentable subject matter, new, non-obvious and capable of industrial application. A sovereign authority has the authority to issue a legal document to the inventor to make, sell and use his invention for a particular number of years with usual term of 20 years. But there is a need for patent term extension to give the inventor more time to use his invention for the purpose of development and growth of invention.

Overview on Extension of Patent Period

This time period can be extended only by following both conventional and constitutional laws that impliedly or expressly provides for the requirement of extension and can extend the term of the patent for not more than 5 years.

Past few years, there is much debate on extension of time period of patent because much of the time of the inventor is delayed during the process of application and examination of approvals from different regulatory authorities.

Read our article:Detailed Process of Patent Registration in India

Patent Term Extension: Why is it Needed?

Major reasons for patent term extension are given below:-

Patent Term Extension: Why is it Needed

The present timeline of a patent grant was made compulsory by the TRIPS agreement. At present, patent extension time is not permitted in India. Although there are few reasons which can be considered for patent extension and those are as given below:-

  • While the inventor gives an application to the Indian Patent Office for seeking approval for his invention. This course of processing of patent application consumes around half of the period of the patent granted.
  • Other regulatory authorities can also be the reason for delay in providing approval due to various tests for checking the patent processing.
  • In pharmaceutical inventions, even when the patent is granted to the inventor, the patented product is not allowed to be marketed for quite a few years.
  • During the process of examination of the patent, the inventor has to pay high amount of maintenance fees.
  • Patent term extension will help to improve many businesses if they have to obtain a regulatory approval for a drug or medicine.
  • Due to patent term extension, the inventor can get benefit to gain economic benefits associated with the invention which he could not receive during the examination of his patent application.
  • Patent term extension will serve the main cause of providing patent under IPR i.e. to encourage innovation in the industry. The inventors will be able to freely work for the advancement of his invention and promote development.

Nitto Denko Corp v. Union of India

In the case of Nitto Denko Corp v. Union of India, it was for the first time proposed by suggestion of the Second Committee appointed under the Government of India for the extension of the patent term on the direction of Hon’ble Delhi High Court[1].

It was also referred to consider compensation to the inventors for the time taken by the regulatory authorities in the examination process and also consider waiving of the maintenance fees or extension of patent term.

Impacts of Patent Term Extension

The Regional Comprehensive Economic Partnership (RCEP) which is an authority of free trade agreement between the Asia Pacific nations and has 15 signatories. RCEP has reignited the debate about the patent term. It has projected to further extend the existing 20-year patent term for pharmaceuticals.

On considering the above proposal it was noticed that the proposal of patent term is not suitable for India, as here the patent monopoly for 20 years is in itself contemplated as too long because it blocks genuine competition amongst different inventors.

This is particularly considered keeping in mind the advancement of technologies with time and requirement which is going too fast. The RCEP wanted to increase the given time period granted to inventor for patent applications during the evaluation of the particular invention’s novelty in conformity with the needs of patentability.

The following are few general impact of patent term extension:

  • Extension will bring about a prior patent publication indicating the absence of newness of the invention. This prior publication will not be allowed to be part of the examination or permit opposition evidence.
  • Extension of the time period for patent term will make patenting simpler for companies and organisations.
  • Patent term extension could unfavourably have an effect on access to the economical medicines that are manufactured by the conventional pharmaceutical companies in India.
  • The patent term of a longer period for pharmaceutical companies will cause deferment in the passing of traditional forms which could negatively affect the access to reasonably priced medicines.

Criticism on Patent Term Extension

Few of the criticism on patent term extension are as given below:

  • With the extension of patent term, it will effect into longer exclusivity for the invention and thus it will take much more time for the technology covered by the patent to come into the public domain. Thus, patent term can create a technological lock-in.
  • The provision of granting the patent term extension and Non-Patent Exclusivities will necessitate the establishment of the Patent Linkage system in India which is not presently in effect. India is not planning to establish any patent linkage system because it has not entered any trade agreement which mandates such provisions.
  • Even the TRIPS agreement does not necessitate the inventors to give such extension benefit this means that there is no obligation on India to grant Non-Patent Exclusivities and patent term extension.

India is not a signatory to any trade agreements like the Trans-Pacific Partnership (TPP), Regional Comprehensive Economic Partnership (RCEP). These trade agreements which is influenced by the big pharma companies of the developed countries comprises of a new regime called TRIPS Plus. But India is not obligated for the same.

  • If these provisions are executed, they would seriously cause setback to the entry of generic varieties of the drugs into the market. India is a developing country and it always takes decision taking into consideration the deprived and poor sections of the society so it will not grant patent term extension.

Conclusion

The Developed countries look for patent term extension considering that it is essential to recover the costs from research and development (R&D).

The proposers of the patent term extension has the same viewpoint that this time period of extension could add up to the loss caused during the period  of applying for the examination by the regulatory authorities or due to the delays caused by the patent office. However, these arguments are unsustainable.

Moreover, patent term extension can also be one of the major reasons that can result in welfare of the corporate but at the cost of social welfare. Therefore, India being a social welfare eccentric country cannot afford to extend the patent term currently.

Read our article:5 Remarkable Benefits of the Patent Registration in India

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Kandarp Vanita

Kandarp Vanita has done masters in Corporate and Commercial Law from WB National University of Juridical Sciences. She has 3 yrs of experience in drafting legal documents & dissertations. Being a curious reader, she is also passionately into providing legal backups and comprehensive understandings in every aspect of Law to the firms.

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