“Working” Patents in India
Great article providing lots of empirical information on India’s working requirements and a lot of discussion of the issues raised by the requirements. That said there doesn’t appear to be any discussion of the important issues of: how long it takes Indian applications to clear the office (VERY long) – if it were shorter, like under 5 years, then having to show working within 3 years might be a real issue, since, I would argue, most non-pharma patents aren’t “Worked” by anyone for at least 5 if not 10 years after filing; the mess that is the Indian patent office – unless something has changed recently, while much of an Indian patent is on line, the ACTUAL ISSUED CLAIMS are NOT and must be found at Individual patent offices. If that is still the case, then any reform of Working must first account for the fact that third parties have no easy way of really knowing the true scope of Indian patents are.
These points and the issues raised in the article (including nightmare of trying to assign value for Individual patents on a product like a cellphone outside of a litigation and prospectively as the patent issues; how the working requirement seems to impose a duty on global licensors to monitor whether the licensees are in fact “working” in India as opposed to having the right to do so; concerns about the fact that most licensees prefer to keep their licenses confidential; among other issues) make one wonder whether the entire point of the working system in India is to provide a self-destruct option for the Indian patent system by making it impossible to enforce patents coming from complex patent ecosystems (E.g., SEPs) or at least requiring compulsory licenses.