Arbitration of patent validity disputes in India: a comparative study

In India, both the Patents Act 1970 and the Arbitration and Conciliation Act 1996 are silent on the arbitrability of patent validity disputes. Presently, validity is challenged through counterclaims in infringement disputes. The Supreme Court has said that patent disputes involve in rem (against a thing) rights and should, therefore, be adjudicated before a public forum since public authorities confer patents, making them matters of public policy. This article examines this public policy analysis and provides arguments against it. Additionally, connected issues such as a high pendency rate of cases before Indian courts, a lack of specialist judges, and insufficiency in understanding the importance of confidentiality have contributed to the downfall of the patent dispute regime in India. These are also addressed. Finally, the article explores international best practice through comparison with the USA, the UK and Switzerland. It concludes by recommending the use of arbitration in a way that would be within the scope of the Arbitration and Conciliation Act 1996 without conflicting with the Patents Act 1970.