Part II: A Peek Behind the Curtains of the Patent Amendment Rules 2024: A Diversity Analysis

[SpicyIP]

In continuation of the discussion on Prashant’s RTI, which revealed some spicy behind-the-scenes details about the Draft Patent Amendment Rules, 2023 consultation, Arnav Kaman assesses the diversity of stakeholders who participated in the process by sending their comments and highlights the glaring absence of academia from it. Arnav is a 4th year law student from the Rajiv Gandhi National University of Law, Punjab. His previous posts can be accessed here.

A Diversity Analysis of the Consultation on the Draft Patent Amendment Rules 2023

By Arnav Kaman

The Draft Patent Amendment Rules 2023, were released to the public on August 22, 2023 and 30 days were given for comments and objections. Every participant in this process wonders not only about the contents and efficacy of the consultation, but also about the diversity of the stakeholders. Who participates is equally important as how they participate. Recently Prashant Reddy T. shared an RTI response from the CGPDTM with us that contains extensive details of the process of consultation that took place in 2023. The documents include a detailed report of the patent office responding to the comments and submissions submitted by stakeholders across the world. A separate post has gone into some interesting substantive findings stemming from that RTI response. This current post is a top level diversity analysis of the stakeholders who have taken part.  [Spoiler alert: Among the various questions that emerge – as a student, the biggest is why law schools are absent from this list!]

Methodology:  There are a total of 71 unique stakeholders whose comments are reflected in the recorded feedback in the RTI response. Needless to say, there is no official designation of ‘stakeholder category’ for each party, so while I’ve attempted to put them into categories that make the most sense to me, I am open to correction. Of these 71,  5 of them fall into ‘Independent/Academic/Researcher” as a catch-all category for those that we aren’t sure about or can’t clearly place into another category. In cases where an individual has been noted with their respective organisation, they’ve been noted as the organisation assuming they represent the views of the organisation. Please also note that some stakeholders may not have been recorded in the RTI response (more on that later below). As we don’t have those details, we are proceeding with this list of 71. Corrections or additions if any are welcome in the comments below. 

The categories of paticipants and their percentage of participation are: 

1. Firms (30.6%)
2. Individual Patent Agents/Advocates (15.3%)
3. Companies (12.5%)
4. Industry Associations (13.9%)
5. Foreign Interests (11.1%)
6. Civil Society/NGO (4.2%)
7. Assistant Controllers (4.2%)
8. Governmental Organisations (1.4%)
9. Independent/Academics/Researchers (6.9%)

A full list of all recorded stakeholders can be found at the end of the blog. These categorisations do not indicate that all members from one group agree on recommendations. The consultative process requires a diversity of stakeholders and this post aims to analyse the diversity, the concerns involved and recommend further solutions to increase the diversity. 

Observations: 

Approaching this top down, we first see firms are the largest contributing group. Firms are likely to have dedicated teams that can prepare comments and further they have a direct incentive to participate considering their clientele.

The second largest group are individual patent agents – 11 of them., Though they have done this as individuals, they are not being grouped into the “Independent/Academic/Researchers” category as they arguably form a different class of stakeholders, and they have the most intimate interaction with the patent rules. Notably,  the register of patent agents by the patent office consists of almost 6000 patent agents. By that lens, 11 is only 0.18% of the patent agents 

Third are industry associations which include three associations of lawyers, three associations of pharmaceutical groups and four trade groups with direct vested interest in amending the rules. 

Next are individual companies, 9 of them, out of which 4 are pharmaceuticals and the other 5 are automotive companies and tech innovators. 

The next group is that of the 7 foreign interest / lobby groups, which include governmental organisations to promote India’s foreign relations, such as the USIBC to increase bilateral trades, to trade associations based in other countries such as PhRMA, (consisting of 32 of the biggest pharmaceuticals in the world). There are also NGO’s such as the Japan Intellectual Property Association representing the Japanese industries, and in one case a foreign country itself, the United States – where no specific department has been specified, though it is perhaps likely to be that of USTR. 

And the last set of small groups – There are 3 Civil Societies present in the documents: Medecins Sans Frontieres, Women Positive Network and Delhi Network of Positive People. There are also comments from three individuals who have been identified as Assistant Controllers of Patent and Design.  One government funded organisation, CSIR, and the last set falling into the category of independent/academics/researchers, which include 1) Sriram K, 2) Dr. Madhuresh Kumar, 3) IIT Bombay, 4) Nandita Venkatesen and 5) the group consisting of Swaraj, Praharsh and Tejaswini, whose comments can be found here. 

Concerns and Recommendations

At first glance there is an obvious over representation of industrial/commercial interests compared to public interest groups. The interests of companies and industry associations have been represented more than sufficiently, whereas only three civil society groups have been represented , even though far more stakeholders were affected by the changes brought in by the 2024 amendments across the world (check here for an analysis). In fact there is one US based civil society organisation that claims to have submitted comments, Public Citizen, who is not present on the documents received through the RTI. There is only speculation as to what happened with these submissions.

This overrepresentation is likely because these groups have far more resources available to first invest into preparing comments in the short span of 30 days but further influence policymaking through lobbying. There is a complete lack of representation from smaller companies or grassroots industries – perhaps because they either do not have the resources or are not aware of how the changes affect their interests, or do not think there is any point in participating; likely some combination of these. 

As a side note, it is interesting to see that just a couple of years prior, in a set of meetings in Oct 2021 and Jan 2022, proceeding reports refer to stakeholders as “essentially IPR Firms practising in India” and have only 12 IP Firms as the contributors to that set of stakeholder feedback sessions. This was regarding a virtual stakeholder consultations done to collect feedback on the Department Related Parliamentary Standing Committee’s 161st Report “Review of the IPR Regime in India” (discussed here) organised by the Indian Patent Office and DPIIT  (see page 61 of the RTI response).  

Perhaps the most egregious lack of representation is by academic institutions. Only IIT Bombay seems to have submitted comments recorded in the document. NLU Delhi’s CIIPC claims to have submitted comments (which can be found here) but they seem to have fared a similar fate to that of Public Citizen’s comments, as the CGPDTM’s documents do not contain any reference to them.  Many universities across the country have dedicated student centres and groups for research into Intellectual Property yet in this consultation none of those groups have participated, or at least if they have, none of their submissions have been recorded. The DPIIT has set up 18 chairs across the country in universities to promote research into Intellectual Property yet we could not find evidence that any except IIT Bombay, and maybe NLU Delhi participated. Academic groups that have been instituted for the development and growth of IPR Education, Research and Training should directly interact and voice their opinions in the processes that matter.

Aside from specific concerns, there are also general concerns that act as roadblocks and make it unlikely for them to participate. The constraining time limit, the lack of publicity amongst smaller industries, and lastly a larger lack of faith in the process itself, considering how at least two stakeholders have apparently submitted comments but are absent in responses, are all part of the problems plaguing the process. While many of these concerns require drastic change with the pre-legislative consultative policy itself, diversity can also be impacted by smaller steps like increasing awareness and recognition. Civil Rights groups might not be participating simply because they aren’t aware when the call for comments is released or how such amendments directly impact their interests. Notices for such calls must be circulated across media and sector specific platforms and channels along with understanding its overreaching effects. Academics may be incentivised for participation far more through a public acknowledgement of their comments by the patent office. Furthermore if the Patent Office asks for a call of comments from the public they must be diligent in collating and responding to all comments. 

The changes brought in by the Patent Amendment Rules 2024 affect a wide range of stakeholders whether they know it or not, they certainly are not all represented here. This lack of participation is what leads to the patent policy of the country being influenced by the interests of the few. This data analysis should not only act as a wake up call to all the under represented from civil societies, academics and small industries but also signal to the patent offices that their process of  consultation only passes through the hands of the limited few leading to a skewed understanding of public concerns and for a truly representative process, diversity has to be achieved from efforts from both stakeholders and the office that initiates the process. 

Any parties who submitted comments but whose name does not appear in the following list may reach out to us in the comments below. 

The author would like to extend their thanks to Swaraj and Praharsh for their patience and comments.

The following is the full list of all stakeholders as recorded in the RTI Response:

FIRMS (22)

1. HK Acharya & Company 
2. Anand & Anand 
3. De Penning & De Penning 
4. Remfry & Sagar 
5. Subramaniam & Associates 
6. Anjan Sen & Associates 
7. Corporate Law Group 
8. K&S Partners 
9. Global IP India 
10. Khaitan & Co. 
11. Krishna & Saurashtri Associates LLP
12. Lex Orbis 
13. IPR International Services 
14. IP Global Services 
15. Chadha & Chadha 
16. InventIP 
17. Saikrishna & Associates 
18. BananaIP Counsels
19. Lex IP Care LLP 
20. Gnanlex 
21. RSD Bajaj Global Law Firm
22. DP Ahuja & Co. 

INDIVIDUAL PATENT AGENTS/ADVOCATES (11)

1. Nekita Kumari 
2. Aditya Kochhar Patent Agent & Startup Facilitator 
3. Dr. Chandan Kumar Singh 
4. Rakesh CR INPA 
5. Naren Thappeta 
6. Gauri Dutt Sharma 
7. M Gowthaman 
8. Advocate Dr. Deepak Mehra Patent, Trademark, GI Agent 
9. Dr. Amutha 
10. Dr. Shivani Rana  
11. Vora Pratik Ashwinbhai 

INDUSTRY ASSOCIATIONS (10)

1. Intellectual Property Law Practitioners Association
2. Intellectual Property Owners Association 
3. Indian Pharmaceutical Alliance 
4. Society of Intellectual Property Attorneys (FICPI)
5. FICCI 
6. IndiaTech.org 
7. Indian Drug Manufacturers Association 
8. The Organisation of Pharmaceutical Producers of India (OPPI)
9. NASSCOM 
10. Intellectual Property Attorneys Association

COMPANIES (9)

1. Bajaj Auto 
2. Ericsson 
3. Ipca Laboratories Ltd. 
4. FDC Ltd. 
5. IBM India Pvt. Ltd. 
6. Troikaa Pvt. Ltd. 
7. Mahindra & Mahindra 
8. Serum Institute of India 
9. Tata Motors 

FOREIGN INTERESTS (7)

1. US Indian Business Counsil 
2. IP Federation (UK IP Trade association) 
3. The United States 
4. US-India Strategic Partnership Forum 
5. Pharmaceutical Research and Manufacturers of America 
6. Japan Intellectual Property Association
7. Japanese Intellectual Property Group in India (IPG) 

ASSISTANT CONTROLLERS (3)

1. Mr. Sagar Pol 
2. Naitik Kumar
3. Suresh Kumar

CIVIL SOCIETY/ ADVOCACY GROUPS (3)

1. Doctors Without Borders (Medecins Sans Frontieres)
2. Positive Women Network 
3. Delhi Network of Positive People 

GOVERNMENT ORGANISATIONS (1)

1. CSIR 

INDEPENDENT/ACADEMICS/RESEARCHERS (5)

1. Swaraj Paul Barooah, Praharsh Gour and Tejaswini Kaushal, along with research assistance from Tanya Verma.
2. Sriram K 
3. Dr. Madhuresh Kumar
4. IIT Bombay 
5. Nandita Venkatesan

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