The Selection of Patents – The Choice between Regulatory Reforms and Market Reliance to Weed Out Suspect Patents

Sir Nicholas Pumfrey J., in an attempt to guide the judicial mind to segregate obvious patents from nonobvious inventions, noted that: “Both the Scylla of considering nothing obvious except that to which the skilled man is driven and the Charybdis of considering every invention obvious that can be decomposed into a sequence of obvious steps must be avoided.” The task of creating a standard that would serve as a guidepost to avoid the obvious in the quest to glean the invention from the improvement has been tedious and remains ongoing. In this regard, one of the oldest debates for which a solution has eluded policy makers relates to the choice between market reliance versus regulatory reforms. The choice of either option as a tool to address policy concerns presents credible advantages as well as disadvantages. The United States has embraced both of these options to address concerns relating to various aspects of the legal system. This paper contrasts the preference for market forces in the United States to streamline the doctrine of nonobviousness with the preference for regulatory reforms to achieve the same objective in India. In this regard, grant opinions from the Indian patent office – a relatively difficult research tool – have been examined to illustrate the standard and demonstrate the results of regulatory reforms on the quality of patents in India. In doing so, the paper also analyzes the conformity of the standard with the TRIPS Agreement, compares it with the standard in the United States and discusses how regulatory reforms have affected the development of the law on nonobviousness in India