The general prise rise and inflation in the economy has enveloped the Indian Patent Office (“IPO”) as well. The Department of Industrial Policy and Promotion (“DIPP”) has proposed to hike fee levied for filling and prosecuting patents vide its notification dated May 06, 2013. The notification essentially seeks to amend the Patent Rules of 2003 (“Patent Rules”) in particular Rules 7 and 136 of the Patent Rules providing for the official fee for filing and prosecution of patent applications. Central government proposes to enact and implement the amended patent rules to be designated as ‘The Patents (Amendments) Rules, 2013’ after the same is deliberated upon by parliament.

As pointed out above, the proposed amendment seeks to amend Rules 7 and 136 of the Patent Rules. While Rule 7 in its current form lays down rules on two matters namely the quantum of fee payable and the mode of payment of fee in respect of grant of patents and other matters under the Patents Act, 1970 (“Act”), Rule 136 confers power on the Controller to award cost in all proceedings before the Controller. Now the proposed amendment aims to add a proviso to Sub Rule (1) of the Rule 7. The proviso to this rule is proposed to levy 10 (ten) percent additional surcharge on the fees for different proceedings under Patent Act, 1970 when the application for patent and other documents are filed in physical mode namely in hard copy format.

The amendment of the first schedule of the Patent Rules is also sought which proposes to almost double the fee presently charged by the IPO. The proposed first schedule lists a total of fifty chargeable/non chargeable activities while the first schedule in its current form lists sixty activities. Further, the proposed amendment mentions application for permission for applying patent outside India under section 39 of the Patents Act, 1970 and rule 71(1)’ which is not subject to fee under the present Patent Rules. Surprisingly, entry for ‘filing representation opposing grant of patent under section 25(1)’ in the first schedule of the proposed amendment is exempted from depositing any fee as opposed to present Patent Rules which charge fee of INR 1500 (Rupees one thousand five hundred) for natural applicants and INR 5000 (Rupees five thousand) for others.

A very interesting aspect of this amendment is that it stipulates payment to be made through two categories one of the two shall be the payment via e-route and the other would be the payment via physical mode. The main punch of these proposed amended rules provide an incentive to applicants for filling through the electronic route and levies penalty in form of additional fees of 10 (ten) percent on any filing done on paper. This categorisation into e-route and physical route is a clear deviation from the existing classification into different slabs of fee payable by natural persons and that by persons other than natural persons. Furthermore, the fourth schedule post amendment sought by the relevant notification of DIPP, witnesses a price hike for all nine enteries in comparison to the current Fourth Schedule of the Patent Rules. The enteries have not been changed, replaced or substituted. Stamp fee for power of attorney where a patent agent or other person has been appointed or stamp fee in respect of relevant affidavits remains unchanged i.e, the fee is the amount actually paid. This schedule is with respect to the proviso that shall be added in rule 136 and has got nothing to do with the ‘e’ – filing or the physical filing. This seems to be an additional part of this harsh policy of the DIPP of going with the flow of hiking the fees.

The objective sought behind the revision of fees has not been stated explicitly anywhere in the notification dated May 06, 2013; however by implication, the intention behind the strategy of charging more for physical filing and promoting patenting the ‘e’ way may be understood to mean that the additional fee is required for overhauling the present physical filing system and equipping the IPO with state of the art technology. Nonetheless, one would still question the utilisation of the already available excess funds at the disposal of IPO. Though it must be appreciated that the move is warranted in order to ameliorate the IPO services while discouraging frivolous application, one cannot ignore the fact that such increase in fees would unnecessarily burden the patent filing while discouraging the genuine applicants as well.

Despite the fact majority of population in our country has difficulty in accessing internet, the move to modernise and shift to electronic filing completely ignored the limitation of the proposed model particularly in rural areas whilst contributing through additional fees burden. Guidance should be sought from the Ministry of Corporate Affairs and other government departments which have successfully shifted towards the electronic mode without causing any undue hardship to the masses. Further, as the move comes immediately after the United States Patent and Trademark Office revised its fee schedule in March, 2013, it is seen as unnecessary step effected only to follow the international move by the IPO which already has excess funds in its kitty.

In the point of fact, upon study of this patent amendment one realises that it seems to be lacking a vision. The policy is not appealing at all. Another ambiguity that requires attention is that DIPP intends to hike the fees without providing any justification for such increase or how this increase is going to benefit the patent regime/inventors. Had there been any reason for such a hike, this change in the fee would have definitely been taken up from another point of view, which could have been a positive point of view as well. The focus of the proposed amendment seems to be to acquire advanced technology which is noble but is in fact very premature step considering the present day system. The urgent need of the hour is development of the patent system in India, while creating awareness for the protection of rights of the inventors. India has a perfect legal system for such protection already, but the vacuum lies with the ‘patent awareness preaching’ system of the country. Thousands of inventions are either sold off or are being traded to other countries, for the reason that this unawareness still prevails. In the era of conventions like the Paris Convention, Madrid Protocol and Trade Related Intellectual Property Rights, an urgent need of matching the global standards should be insisted.