India entered into a new era of product patent regime when the amended Patent Act was notified by the government in January, 2005. Three amendments were brought to the Patents Act to meet its obligations under TRIPS agreement which ultimately changed the parameters of Indian patent law. These changes also forced Indian pharma industry to restructure its growth strategies to face the patent challenges. The first of the three amendments introduced the provisions for Exclusive Marketing Rights for pharmaceutical and agro-chemical products in1999. The second amendment brought some critical changes including term of patent, narrowing the scope of patentable inventions, provisions regarding PCT and inserted section 5 (2) introducing a 'Mail-box' provision. The third amendment deleted EMR provisions and reintroduced the product patent in pharmaceutical, chemical, agro-chemical and food industries by omitting section 5(2). The third amendment has a clear objective of keeping trivial and frivolous pharmaceutical inventions out of patent protection to avoid chances for evergreening. Particularly, amendment to section 3(d) precludes patent protection for mere discovery of new forms of a known substance, which lacks enhancement of the known efficacy of that substance.
These critical changes in the country's patent law brought along a sudden spurt in activity in the patent offices. That has to be expected as the MNCs have been waiting for long to claim exclusive marketing rights for many of its products. Currently, nearly 42,000 patent applications are pending with the Indian Patent Office with request for examination. Out of this, almost 50 per cent applications are at the Delhi Patent Office and around 82 per cent of the total filings are from foreign applicants. The total number of applications could be much higher in future, as the IPO received 36,000 patent applications in the last financial year alone. The IPO, which has a staff of only 155 officers including 80 controllers and 70 examiners may not be able to clear so many applications in an year's time. The plan to recruit 250 additional staff within the year to handle these applications thus makes sense. Examining thousands of patent applications is indeed a tough job as a good number of these applications are frivolous and do not deserve patents. Many of these applications, therefore, attract pre grant oppositions. It is gratifying to note that P.H. Kurian who took over as the Controller General of Patents, Designs and Trademarks in January this year is trying his best to streamline most of the IPO operations in right earnestness. He has set a deadline of July 1, 2009 for revamping its entire operations in the country by clearing all the possible backlog files. An unfortunate fact, however, is the extremely poor response to on line patent filing, introduced by Kamal Nath, Union minister of commerce and Industry in July 2007. Technical inadequacies seem to be the main hurdle for the applicants to go in for this advanced system. If e-filing of patent applications could be made a real success, that can probably revolutionise the entire working of patent offices across the country.