Saturday, July 30, 2011

Patent Hypocrisy: Are We Turning Civil Suits into Criminal Trials?

Sometimes I wonder if it is worth applying for a patent in India. I mean, of what use is a right when you can’t enforce it even when you are supported by the letter of the law? 

Why should anyone apply for a patent in India, when at the end of the day, it is rendered a worthless piece of bauble? Because enforcing it seems to weigh on our conscience thanks to some misplaced sense of righteousness.

Do innovators or creators of wealth or right holders always deserve to be approached with circumspection? If yes, why do we seem to have one approach for the sanctity of copyrights of music composers and lyricists (whose claims sometimes are not even grounded in law), and an entirely different yardstick for the rights of patentees (even when the letter of the law does not advocate perpetual suspicion of patentees)?

I am not denying the absence of presumptive validity nor am I denying that no patent grant can ever be fool-proof. But let’s also realize that if there is a mechanism for grant of rights, it exists under the premise that someone deserves an incentive for his or her efforts. Shouldn’t we acknowledge this when we discuss the dialectics of patent litigation?

The point that I think I am trying to make, is that slowly we are veering towards a trend where undue burden is placed on the patentee, without taking into account the dynamics of the technology industry. Patent litigation, if it remains oblivious to the rate of obsolescence of a certain technology, is not being true to the very intent behind its inception.  

The most critical and fatal real-time consequence of this unhealthy trend is lowering the standard of proof or burden that a defendant is expected to discharge before the Court, combined with an unrealistic and super-herculean burden on the patentee. 

I don’t see how this is different from a criminal trial where the prosecution is expected to prove its case beyond all reasonable doubt, and the accused can afford to stay mum and be acquitted if the prosecution fails to match up to the standard. The patentee is always in the dock despite being the plaintiff and all that the defendant has to do is satisfy the measly burden cast on him in the name of "credible challenge". 

"Credible challenge to the validity of a patent” cannot be morphed into a backdoor solution to deny remedy to a patentee. Even in the absence of presumptive validity, the defendant ought to address the Court on merits, instead of mouthing inanities such as “recentness” or “absence of presumptive validity”, which have now become standard prejudice points and are firmly entrenching themselves in the judicial vein with each passing day.

This unsavoury trend along with the absence of patent courts which are adequately equipped to appreciate the peculiar needs of patent law, and the business of innovation, practically make for decent arguments against applying for a patent in India. 

The system of patents was brought in as an alternative to hoarding knowledge as trade secrets; but if enforceability issues cripple right holders, why should not innovators want to go back to trade secrets as a way of protecting their legitimate interests?

My apologies if this sounds like a rant, but I think someone has to play the Dirty Harry and ask a few politically incorrect questions, and throw hypocritical populism into the wheelie bin. 

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