Towards More Intelligible “Open Access” at the Indian Patent Office: A Study of Compulsory Licensing Cases – II

This post has been co-authored with Prof. Shamnad Basheer.

In Part I of the post, we illustrated that a number of patent records are not accessible on the Indian Patent Office’s website in an easy to access and intelligible manner, using the example of the three compulsory licensing (CL) orders passed by the Indian Patent Office. In Part II, we synthesise some of our thoughts and suggestions on making Indian patent data more openly accessible and democratic going forward.

‘Available’? Yes. ‘Accessible’? No.

The reason we recounted Pankhuri’s torturous search history of searching the IPO website in Part I of the post was to bring home the fact that although these orders are ‘available’ on the Patent Office’s website, they are hardly ‘accessible’. Availability and accessibility are not synonymous. Providing ‘open access’ to data entails not only making it freely available somewhere but also ensuring that it can be searched for and found in an easy and intelligible way. The patent attorneys and others dealing with the Patent Office’s website day in and day out may well be aware of all the multiple search options discussed in Part I and may not find searching for the Controller’s orders using these options to be an onerous task at all. But, can other lawyers (like me) who do not regularly use this website and worse still, a layman, access these orders in a hassle free manner? None of these orders can be found either upon a simple or advanced search on Google or in the ‘Controller’s Decision’ database, which (as mentioned earlier) is arguably the most intuitive way of searching for these orders, given that they are also decisions handed down by the Controller. Further, using none of the other two search options on the Patent Office’s website, i.e. simple keyword search and the Patent E-Register search also, can one one find all the 3 CL orders. Moreover, can you call a patent order openly accessible, if, in order to search for it, one needs to know the number of the patent it pertains to? The Natco-Bayer CL order cannot be located on the Patent Office’s website, unless the person searching for it knows the patent number of ‘Sorafenib’. It cannot be found using other particulars such as the names of the parties, date of decision etc. Worst of all, there is no record of any CL order found when one types in section 84 for section wise search on the ‘Controller’s Decision’ database. Isn’t there a good chance that a person, who goes to this database to check if there have been any CL cases in India till now, assumes that there have been none when no results appear for a section 84 search (except the Panasonic order involving R. 84 and not S. 84)? Or that a person doing a general search on the website using the keyword ‘compulsory’, assumes that there have been only 2 CL cases in India (Bayer-Natco and BDR-BMS) till now when only the orders in these 2 cases appear in the results and not the Lee Pharma-AstraZeneca one.

Further, only ‘scanned’ copies of orders are uploaded by the Patent Office on its website. These copies are bulky and not searchable. The latter is one of the reasons why they don’t appear in Google search results, and also why there is no free text based search enabled on the ‘Controller’s Decision’ search portal. Adding to this, the links to the orders found in the Patent E-Register (e.g. the link to the Natco-Bayer CL order: http://ipindiaonline.gov.in/patentsearch/GrantedSearch/pdfviewer.aspx) are not stable and thus, cannot be hyperlinked or instantly shared. Furthermore, even if a particular order is available in the E-Register of the relevant patent, one may not be able to locate it instantly, as the documents in E-Registers are not named and arranged in an orderly fashion. For instance, the CL order file in the Dasatinib Patent E-Register is named as IN-PCT-2001-01138-MUM-ORDER_SECTION_84_(29-10-2013).pdf.

Screenshot of ‘Sorafenib’ Patent E-Register

Towards Improving Accessibility: A Few Suggestions

As we noted earlier, fostering open access to patent data has always been an important part of SpicyIP’s mission. And in furtherance of this mission, we urge the Patent Office to take into account the following suggestions to improve transparency and access to patent data:

1. Every order passed by the Patent Office, including orders in CL cases, ought to be uploaded on the ‘Controller’s Decision’ database. Further, this section ought to be segregated into different categories (Opposition orders (pre-grant/post grant); Compulsory licensing orders etc.).
2. All orders must be converted to a word or pdf document format that can be easily searched internally, rather than merely uploading scanned copies of physical documents. This will allow one to easily and quickly access the parts of the orders that they wish to.
3. A general keyword search must also be enabled on the ‘Controller’s Decision’ search portal. This would enable people to search for orders by just typing in the relevant keyword and without needing to have prior knowledge of at least one of the 6 particulars for which the search is currently enabled on this portal. For instance, currently, a layman who may want to search for all the CL orders that have been passed by the Patent Office till date or all orders pertaining to a particular patented product (e.g. a drug), cannot do so on this portal unless he knows the relevant section number for the former and the patent number or the patentee’s name for the latter. If a general keyword search is enabled, he/she can search for these orders by just typing in “compulsory licens/ce” for the former and the name of the product for the latter.
4. The E-Register for each patent must include all documents pertaining to that patent.
5. All documents in the Patent E-Register ought to be named properly and arranged in a logical order. We suggest that they be segregated into different categories on the basis of the type of document, such as Orders, Correspondences, Forms etc. Within each of these categories, the documents ought to be arranged in a chronological order. Re-naming and re-organization of documents in this way will render it much easier for one to identify the patent document that he/she is looking for.

If any of our readers have any other suggestions based on their experience with using the Patent Office’s website for locating the Controller’s orders etc., please do send them to us. We can then compile a list of suggestions and send it to the Patent Office for their consideration.

Also, if any of you have worked out quick hacks for accessing patent records better through the website, let us know; and we can pass it on to our readers.

Lastly, apart from making the records easily available, the IPO must also ensure that the data is authentic and accurate. We had earlier reflected on a court case that highlighted the perils of inaccurate patent data here. Also, recently, we received a tip from one of our readers, bringing to our attention an error made by the Patent Office in uploading a Form 2 (complete specification) file for a certain patent application. While the application is for an invention titled ‘Fluorescent immunoassay kit for the detection of dengue NS1 antigen’ (3222/DEL/2015), the Form 2 file available in its document folder shows the complete specification for an application for another invention, titled ‘An improved system and method for Braille embossing’.

We hope that the Patent Office will take these suggestions seriously and work with us as stakeholders in a joint bid to help improve transparency overall.

Image from here