The IP landscape in India has changed markedly over the past couple of years, with foreign litigators filing cases outside the traditional sphere of pharmaceutical disputes and courts showing a willingness to grant injunctions and award interim royalties that have had big business impacts on both Indian and Chinese companies. But in a panel during last Tuesday’s IPBC India on the topic of IP risk, speakers were vocal about a danger coming from another source: the Indian patent office and its failure to provide a reasonable degree of certainty around the thorny subject of patentable subject matter.
Faiz ur Rahman, head of intellectual property for Wipro, pointed to the agency's flip flop on software patents over the last couple of years as an egregious example. The patent office has issued guidelines for examining computer-related inventions in 2013, 2015 and 2016. While the 2015 rules seemed to move more in the direction of making software-related inventions patentable, the latest edition swung back in the opposite direction. For an IT services company like Wipro, that makes it very difficult to plot out a strategy for IP and innovation. “We need finality and quicker clarity over whether software is patentable in India”, Rahman said. “The uncertainty is really killing innovation”.
Wipro has argued aggressively against the most recent guidelines, which make it very difficult to protect software innovations. But even an outright ban on software patents would at least provide some certainty and allow for long-term planning. Instead, as things stand even successful local technology companies like Wipro – which booked over $1 billion in profits last year – have very limited incentive to build a long-term IP strategy around India’s patent system. Rahman’s message to policymakers in Delhi was a sharp one: “The never-ending, meaningless meetings in corridors of power need to stop … We don’t have time for incremental changes.”
There have certainly been some positive recent developments in India’s patent system – most notably the hiring of more examiners and the reduction of the backlog; but multiple times on Tuesday the comparison was drawn to China, where change has been anything but incremental. In an interesting parallel, it was announced just yesterday that China’s patent examination guidelines will be amended on 1st April to allow for such claims as “a computer program product”.
The confusion around software patents in India is symptomatic of a wider problem that goes beyond the IT and software industry. Though the country has a wealth of IP talent and human capital, it seems that policymakers and executives have not engaged enough with industry in order to appreciate the value that IP can bring to burgeoning technology companies. As a result, few of the very talented Indian IP experts who appeared on stage last Tuesday are looking after patent portfolios that are quantitatively significant by global standards.
This is not just an issue with the government, but also with top corporate management. On Tuesday we brought you comments from Tata Group CTO Gopichand Katragadda, who told IPBC India delegates “there has never been a better time to create IP”. That’s a remarkable thing to hear from a tech executive of his stature. But while the $100 billion a year conglomerate is a big exception, it is an exception nonetheless. And some major organisations in India seem to be moving in the opposite direction.
Last autumn we reported on the drastic cut in patent filings that has occurred at Infosys, another of India’s major IT players. This shift became apparent in the aftermath of CEO Vishal Sikka’s comments labelling patents a “scourge”. Onetime head of IP Anindya Sircar left his role, in which at one time he had reported directly to Sikka. It is hard to believe that the apparent change in strategy came from the IP function itself or, really, from anywhere but the top.
How different things would be if Indian corporate IP managers – who on Tuesday participated in a sophisticated discussion of IP strategy to rival any we’ve seen at an IPBC event – had the resources, government support and patent portfolios that Chinese companies have. If there’s going to be any chance for the big, non-incremental change that industry is crying out for, the onus is going to be on both patent professionals and tech business leaders like Katragadda to make the case for IP in a language that both the government and business leaders can understand.