Recently, India and a group of 4 European countries- Iceland, Liechtenstein, Norway, and Switzerland (EFTA) signed a Trade Economic Partnership Agreement (TEPA) on a variety of trade related issues, including intellectual property rights. Significantly, the agreement requires India to make substantive changes to its provision obligating a patent applicant to furnish information about their foreign applications corresponding to their application in India.
Weakening Section 8 risks patent quality, discourages accurate disclosure of information about the relevant foreign applications, harming consumers.
Hence, it is crucial for us to reconsider the patent rules, taking into account the altered circumstances brought about by the TEPA agreement, which introduces Section 25(1)(h) as an opposition ground and necessitates enabling an active implementation of Section 64(1)(m). Our recommendation is to amend Rule 12, to include a sworn affidavit that all foreign patent prosecutions and their statuses, as updated to the patent office, are conclusive and comprehensive to the best of the knowledge of inventors and right holders. A rule can be introduced, whereby giving false or suppressing information under the affidavit could attract unliquidated damages for loss of time and resources of the patent office. This will ensure that if the company was aware of certain foreign patent proceedings but failed to disclose them to the Patent Office, a mental element can be assumed through an affidavit by default.
It’s crucial to uphold the safety net established by the pioneers of our patent law to balance the rights of the holder with the public’s interests. This is especially vital as technology advances rapidly while the law struggles to keep up.
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