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Book Review  

Kalyan C. Kankanala, Arun K. Narasani & Vinita Radhakrishnan, ‘Indian Patent Law and Practice’, 2010, Oxford University Press (Rs. 775/-)

Barnik Ghosh reviews ‘Indian Patent Law and Practice’ which covers various aspects of Indian patent law ranging from patent protection to enforcement and management and discusses issues like 'patentability' requirements, patent specification and claim drafting, patent procedure and
opposition, patent infringement and defences, remedies and maintenance, patent assignment and licence drafting amongst other key concepts related to patent law.

India is fast becoming a major global hub in the knowledge industries. From software giants to pharmaceutical companies, everyone is having a major role to play in the country’s economy. But in the modern days, business is not only related to the economy. On the other hand, it linked with the intricacies of the legislations and legal framework of the country. If the entrepreneurs remain ignorant of the laws, the business will never flourish in full gloom. This is more applicable to the software and the pharmaceutical industries of the country, especially when the issue of patenting arises. Though we have an established patent law framework, many are still not clear about the twists and turns involved and the ambiguity and stumbling blocks of resistance which is there for the industries which deal with patents.

It is in this backdrop that the book, 'Indian Patent Law and Practice', authored by Kalyan C. Kankanala, Arun K. Narasani and Vinita Radhakrishnan, assumes significance for the information and communication technology industry in the country, as is the case of many other new-age industry segments. A reference work on patent law in India, covering the gamut of the law from a practitioner's perspective and blending technology, management, and law. This book is illustrative and is suitable for both the common man and the persons from the law background. It is a comprehensive work of reference in the field of patents. But it does not bore the readers with theory alone. With random illustrations, this book is a class apart as a practical guide to the patent law in India. This book also looks into the daily needs of the practitioners and covers their perspective. This book is made user friendly with analyses of relevant cases and illustrations. Not only does it help the lawyer but it covers the diverse fields of technology and management also.

Science being an essential portion of patents, this book explains the technical aspects in a refined manner. The fields of chemistry, pharmaceuticals, biotechnology, software, electronics, and manufacturing are catered to in this book which gives a much updated analysis of all the various aspects of the law of patents. The book covers various aspects of Indian Patent Law ranging from patent protection to enforcement and management. In addition to substantive law, the book also delves into patent procedures including the process for getting a patent and opposition proceedings. Discussions on skill-based aspects of patent law such as specification and claim drafting, licence drafting, patent searching, and infringement analysis are also included in the book. The technical aspects of this book involve the entire aspect of filing the patents. It is done in a very illustrative and graphical format with live illustrations. The patent filing process is known to be cumbersome in the Indian Scenario and this book gives a very lucid illustration making it easier.

For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Article 34 of the TRIPS agreement about the process patents and the related burden of proof is also explained with reference to the Indian Scenario and the Indian Act in which the entire patent grant system has been described and elucidated.

Pursuant to its obligations under the TRIPs Agreement, the Indian Parliament introduced various amendments in the Patent Act and the corresponding Patent Rules in 2002(also in 2005) and 2006 respectively. The most significant amendment introduced in the Act by the 2002 Amendment with regard to the enforcement of patents was the introduction of Section 104-A. The amendment of the patent act and the jurisprudential and practical requirements of it have been explicated in this book. Technically speaking the confusion over the amendment has been simplified in the given book. If a patentee has not worked the invention in India, then the defendant could seek a compulsory license under Section 84(1)(c), if the patent has been in force for more than three years. In addition, if a compulsory license is already in place and the patentee has still not worked the invention but yet asserts it, the defendant can seek a revocation of the patent under Section 85(1) of the Patent Act.

The entire enforcement mechanism which is available to the patent holder has been mentioned in details in this book which shows that in practical it becomes easier for both the practitioner as well as the common man to complete the process without fail. The authors have discussed key issues pertaining to:

  • Patentability requirements
  • Patent specification and claim drafting
  • Patent procedure and opposition
  • Patent infringement and defences
  • Remedies and maintenance
  • Patent assignment and licence drafting
  • PCT procedure
  • Mining patent information
The use of the phrase “computer programs per se” in the Patents Act makes the scope of software patentability ambiguous, says Kankanala. And this book tries to help one crack that ambiguity thus helping them leverage business advantage. Being a patent attorney, Kankanala said he would propose a broadening of protection for computer programs in India. “As of now only computer programs per SE are patent protect able and the meaning of the phrase is really not clear. Clarity with respect to the phrase from the patent office and courts would be very helpful” he explains. Though patent violation is a major problem among the global IT industry, which has been witnessing many patent wars, interestingly no such major case has been reported in India. When this was pointed out, Kankanala said this itself is an indication of the lack of literacy and confidence in the patent system.

A few years back, most companies did not consider India an important destination for patent filings and therefore, there are not many patent disputes. Having said that, it is not the only reason for lack of litigation. The kind of business in India, confidence levels on Indian courts, time and costs involved and so on are other factors. Through this book, we have showcased that Indian patent law and enforcement mechanism are in good shape for helping companies gain competitive advantage through patent strategies” he said. While there are not many literatures on patent law in India this book aims to fill that vacuum. 'Indian Patent Law and Practice', which is targeted at the decision makers, covers five identified domains – IT, electronics, manufacturing, Biotic and chemistry and has enough case studies in the respective sectors for the readers to understand the intricacies of Indian patent law in a simple way.
BARNIK GHOSH is the Deputy Editor of India Law Journal and is presently pursuing his B.A. LL.B (Hons.) from Gujarat National Law University, Gandhinagar. He can be contacted at barnik@indialawjournal.com or barnikghosh@gmail.com.
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