Indian IP is complex, fun and certainly spicy. But most importantly, it is unique. And one of the factors that makes for this uniqueness is that we have four IP offices across the country (Delhi, Mumbai, Kolkata and Chennai). Given that all offices have equal powers in many respects, it is downright derogatory to label any of them as “branches”.
One might argue however, a la George Orwell, that some offices are more “equal” than others, since they house the coveted CG within their precincts or boast a “design” registration unit.
This has no doubt caused a whole array of complex challenges, ranging from difficulties with administrative superintendence and control to the fact that these offices often tend to have a mind of their own. And with a unique mind comes a unique jurisprudence and a unique set of patentability results. The net result is an all too fertile ground for forum shopping, appropriately exploited by crafty attorneys!
I’ve known attorneys to openly discuss as to which office is more pro software patent and which one not so pro. And which is more lenient towards section 3.d cases and which one not so…
The patent manual was an attempt to harmonize the internal patent office position on many of these issues..but sadly, it still leaves a lot of interpretative gaps and is limited in mandate, since it does not ostensibly have the “force of law”.
The easiest solution, albeit a politically contentious one is to designate only one office as the “examining” office. And all others as mere “receiving offices”. In other words, any of the 4 offices can receive applications, but only one of them would actually examine the application and grant/refuse the patent. We have in the past mooted this suggestion on this blog.
The second best solution is to harmonise norms and practices as much as possible. And to ensure co-ordination between the various offices. And this brings me to another serious problem that the quadripular nature of these offices have caused us. Applicants have been known to claim the same invention in different patent applications filed separately at the various offices. In other words, company X will take a shot at filing the very same application (or considerably similar application) at more than one office, hoping that at least one of them would convert to a grant. For want of a better term, one might perhaps refer to this as “forum blasting”–where all potential forums (patent offices) are blasted with the same application!
This problem can no doubt be nipped in the bud by having a very comprehensive database of all filed applications that are accessible to all officials at the 4 offices. One would have expected the IPO to have had such a system. Apparently not! And the double patenting controversy involving Hindustan Lever some years ago is testimony to this lapse.
However, SpicyIP recently received news that will certainly be music to the ears of those that have been working towards the betterment of the Indian patent system. Apparently, Controller General Kurian has, in the last month or so, introduced an internal database of all filed applications in order to curb the menace of forum blasting and to ensure better co-ordination between the offices. Therefore, if X now files an application for a certain invention at the Mumbai office and attempts to file a similar application in Kolkata, he/she will be caught out.
This might well be the CG’s last and final blast at eradicating fraud and corruption from the office. As all of you may know, he is awaiting his release order from the central government so that he can take charge as Kerala’s IT secretary. The Kerala government requested his premature repatriation and he agreed. Many are of the view (me included) that his ready consent for the repatriation back to God’s own country had a lot to do with the wonderful support and encouragement he received from his bosses at the DIPP.
ps: SpicyIP joins many in the country and around the world to offer its condolences to those that lost their dear ones in Mumbai to the heinous blasts.
Kurian, the only controller General IP India who absolutely absorbed himself in the profession, did not get any support either from the subordinates or from the seniors from the Ministry. He was never allowed to work with free mind. Countless complaints were made against him by the corrupt staff to disturb him. The staff, the most corrupt on the earth, felt suffocation as they could not work in a free for all atmosphere. Had Kurian got full support, the IP India would have been at the top in the world. Kurian is a most precious diamond. See the fate of the office, after his departure back to Karala. This office will be again free for all and full of corruption