Dealing with delays at the IPO

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The Patent Office making exceptions for delays to applications due to COVID-19 is welcome, but it should adopt more applicant-friendly policies for other cases too, writes Raj Davé

The Indian Patent Office (IPO) is very strict about certain timelines and does not condone unintended mistakes. An example of a strict deadline is rule 20(4) of the Patent Amendment Rules, 2016. This rule allows only 31 months (from the earliest priority date) for international patent applications to enter the national phase.

The IPO has a longstanding image of being not applicant-friendly. Unintended mistakes and failures to meet the strict deadlines of the IPO are often inevitable, for example, during the coronavirus (COVID-19) outbreak.

patent
Raj Davé

In contrast, the World Intellectual Property Organization (WIPO) – with its goal of promoting innovation and creativity for the economic, social and cultural development of all countries through a balanced and effective international IP system – has a provision for reinstatement of the right to enter the national phase through the Patent Cooperation Treaty (PCT) rule 49.6, if the missing timeline to enter the national phase was unintentional.

In 2003, the PCT gazette showed that 18 countries opted out of this rule, including India. Among these 18 countries, many, like Singapore, have since amended their national laws and accepted to apply rule 49.6. However, India has continued to opt out, without a suitable replacement in place.

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Raj Davé is the IPR chair professor at Gujarat National Law University and the founder of Davé Law Group, Virginia, US.

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