IN the current year of 2013, the Indian Patent Office, for the first time, has published information received from patentees in accordance with Section 146(1), Rule 131(1) of the Patents Act 1970 (the Act), for the year of 2012. It should be noted that the information was not submitted voluntarily as is mandated by Section 146(2). This has made our friends at SpicyIP very happy.
The information was also requested by the then Controller in 2010. Whatever happened after that request is still shrouded in the mystery. While I write this post, SH would have instructed one of his page boys who lurks in the streets of the Patent Office to enquire further into the results of the 2010 request. After that request, the present Controller made a similar request in the February of current year. The present Controller went a step ahead and published most of the forms, received by the office, in this month. The website of the Office has mentioned that much of the information is still under processing and is yet to be made available.
However, this post is to look into the merits of Section 146. The title of the section "Power of Controller to call for information from patentees" is in itself quite intimidating. This section is an attempt to infringe upon certain natural rights of an inventor. Those natural rights include being lazy, the right to not work his/her invention, the right to keep information on private business business confidential from public at large (barring certain governmental organisations such as Taxation Department etc). This is not new given that Indian government has always worked on the principle of telling its citizen what is right for them instead of exposing them to joys of discovering it by themselves.
The proponents of Section 146 rely largely on the argument that there is no-existence of "Non-Practicing Entity (NPE)" in India's patent economy. But the argument doesn't hold much water. They don't exist in India because there are no big money churning inventions or inventors from India. Moreover, Form-27 asks whether one has licensed or sub-licensed his/her patent. Theoretically and pragmatically (in near future), the NPEs can assert their patent in a court of law and then show it to be "working" through way of sub-licensing to the one who infringed on their patents. And in fact that is the very basis of the business model of the NPEs i.e. to litigate and get companies to license their patents and pay for losses. And probably in India, there may be no losses awarded to the NPEs, since they wouldn't have "worked" the patent to incur any loss (judicial position is not clear in this aspect though), but surely they can get a company to license their patents and fulfill the Section-146 requirement.
Not that all jurisdictions respect the rights of the inventors who are not working their patents. In fact, most jurisdictions, especially those compliant to TRIPS, have provisions for compulsory license where the invention is not worked in a stipulated period of time. India, through Section 84(1), allows any person interested to apply for compulsory licence if a patent is not "reasonably" worked in three years from the date of grant. And if India already has such provisions in its laws, where a person interested from public can license a patent if not worked reasonably, why do they need a bossy, overreaching- Section 146 which mandates ALL patentees to work the invention? Are there too many resources lying unemployed at the Patent Office? What purpose does this particular section achieves other than stashing pockets of patent agents and practitioners who charge handsomely for such filings?
Most of the proponents of the Section 146 that I have interacted with are passionate about rights of "poor" individual, rural inventors. If this stereotypical Indian inventor has no access to patent office website, cannot afford patent agents and his/her invention is not going beyond the boundaries of his village, what would be their reaction to an MNC filing for compulsory license for patent held by such an inventor?
Section 146, in my humble opinion, encroaches on right of not to work the invention. The inventors are not obligated to disclose the invention in first place and they should not be obligated to work the invention once the patent has been granted on the invention. Universities are the largest Non-Practicing Entities (NPEs) in most jurisdictions, particularly in India and they cannot work all their patents given that their mandate is to educate and research, and not work the patents. Moreover, this section is particularly disadvantageous to small inventors and entrepreneurs, who for multiple reasons do not have access to wide scales, markets, funds and other support system and for these very reasons they may not be able to "work" the patents. I feel that the public or the person interested should itself take interest in finding the patents that are not being worked, and are also a hindrance to their own work or commercial objectives, and they should settle such "disputes" between themselves rather than the Government (through Patent Office) playing Big Brother on all matters patent. Government would do good by employing their resources into something more meaningful for example granting/refusing patents in lesser number of years, say 3 years. Wouldn't it be better if we have less interference of Government in our lives?
Section 146 neglects the basic premise of patent laws. Patent laws are meant to encourage disclosure of inventions in exchange of a limited monopoly by a State. They are not meant to encourage commercialisation of the inventions otherwise held in secrecy. What remains to be seen is that when Indian Patent Office strictly implements requirements of Section 146 and the number of compulsory licences being granted on the basis of information obtained under it increases or becomes a trend, would the patent filing activity come down in India, especially by lone/small inventors or MSMEs? Therefore, until there is on-off implementation of Section 146 and in not as strictly manner as mandated by the Act, no message can really be driven home on the harm/benefits of Section 146.
