Culling Frivolous Patents in India

Frivolous patents/applications related to pharmaceutical science are dealt by the Indian Patent Office by the provisions available in the Indian Patents (Amendment) Act, 1970.
As per the current provision, frivolous inventions disclosed at the Indian Patent Office can be opposed both before the grant of patent (u/s 25(1)) and after the grant (u/s 25(2)). Frivolous patent applications are scrutinized by the patent office examiners during examination. Section 3(d) of the Act plays an important role in this regard.
As reported by the “Live Mint”, the National University of Judicial Science (NUJS), Kolkata, had conducted a study on the provisions available in the Indian Patents Act to deal with frivolous patents.
It is revealed from their study that the said three provisions, sections 25(1) , 25(2), and 3(d), were the basis of rejecting 7 out of 10 patents rejected in the area of drugs, and 15 out of 20 rejected in other areas in recent years.
Section 3(d) of the Act strictly bars from patenting inventions related to salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance, unless they have significant synergistic effect over the prior art. This provision of the Act also restricts pharma giant from “ever greening” their already granted patents.
Pre-grant opposition and post-grant opposition are other two instruments by which frivolous patenting are prevented.
It seems that the number of opposition is very less in India against the frivolous patent, although there are very effective provisions available in Indian Patents Act to oppose the frivolous patent and subsequent rejection by the Indian Patent Office.
Pre-grant opposition is known as 'opposition by way of representation' under section-25(1) of the Indian Patent Act, 1970. Any individual or legal entity having interest can file an opposition on the ground mentioned in this section after the publication of application, but before the grant of the patent.
Even if a patent is granted, any individual or legal entity having interest over the subject matter as disclosed in the granted patent, can file post-grant opposition. Post-grant opposition is filed under section-25(2) of the act by filing Form-7. The patented matter is laid open for opposition by third party for a period of 1 (one) year from the date of publication of the patent.
As per the recent report of “livemint.com”, patent opposition in India is very less due to insufficient understanding of available provisions by local companies and patient groups.
It is also noted that the number of patents rejected by the Indian patent office during the examination procedure is more than the number of opposition in India. It indicates that the filing of frivolous patent in India is increasing day by day. This is so greatly because of the insufficient understanding and lack of awareness regarding prevailing Indian Patents Law among the people as well as corporate managers.