Spanner in the works

Negligence in patent working disclosure norms is damaging the interests of innovators and the public at large, argues Mathews George

In a case that will have major repercussions on the future of the patent and innovation ecosystem in India, Delhi High Court Chief Justice G Rohini and Justice Jayant Nath recently issued a notice to the respondents in Shamnad Basheer v Union of India & Others. The case deals with the failure to enforce statutory provisions in relation to the disclosure by patentees as to how they have worked their inventions.

This is a unique provision, set out in section 146(2) of India’s Patents Act, 1970, and year after year, patentees are mandated to submit information through form 27 detailing the extent to which they have worked their patent. To work a patent is to convert it into an innovative product and supply that product to the market in a manner that satisfies the reasonable requirements of the public.

The format for this mandatory patent working disclosure is prescribed under schedule II of the Patents Rules as form 27. Form 27 disclosures have taken centre stage in several patent litigations including the Bayer versus Natco compulsory licensing dispute, in which Natco used Bayer’s form 27 (working data) submissions to demonstrate that the latter’s drug was reaching only 2% of the patient population.

Mathews George is a blogger for SpicyIP, a blog on intellectual property and innovation law and policy. SpicyIP is committed to increasing transparency in Indian intellectual property policy and institutions.