_<u>Recommendation 3:</u> Charge the proposed think tank with exploring the relative merits of a patent registration system and a patent examination system. Emphasize the need for a rapid response, and take appropriate steps to recalibrate plans for modernization and personnel training to implement the chosen regime._ _<u>Recommendation 4:</u> Commit to completing the modernization of the Patent Office as soon as possible. Enable automated applications and online searching. Launch a prior art database and interconnect these databases and search engines with as many foreign patent offices as possible, as quickly as possible._

# **4.3 Consistency and Professionalism**

# <u>4.3.1 The Role of Subjectivity</u>

The key to a functioning patent system lies in how it motivates scientists, technologists, and innovators to develop ideas and products that benefit society. Consistency is the most basic requirement of any motivational system. All behavior rests on reasonable expectations. If innovators (or their legal representatives) cannot predict how they will fare when they seek to obtain and enforce their patent rights, they will not use the system—or at the very least, they will not use if appropriately. The most important implementation challenge that India faces is promoting consistency and predictability in its patent system.

The drive for consistency has been the bane of many patent systems. Every patent application requires an examiner (or in a registration system, a judge) to determine whether the claimed invention crosses the requisite thresholds of novelty and nonobviousness, whether the applicant has distinguished the invention sufficiently from prior art, whether the language is sufficiently clear to describe the invention to others skilled in the art, and whether the claim language is sufficiently precise to delineate the invention claimed. Most applications lead to exchanges between the examiner and the inventor, and subsequently to amended claims. In cases of ultimate rejection, many applicants appeal—requiring the appellate body to reconsider each of the examiner’s decisions.

Pre- and post-grant challenges raise all of these validity issues once again, though this time in a more balanced environment, where advocates for both views try to persuade the patent office that they are correct. Infringement litigation raises them in yet another contested setting—along with the new set of issues that emerge when comparing an asserted patent claim with an accused product. Hearings to seek compulsory licenses require judgments about both the criticality of the patent in question and the availability of the products that it covers.

Each of these judgments necessarily embodies a certain amount of subjectivity. Subjectivity, in turn, opens the door to inconsistency, incompetence, and even corruption—in effect, raising once again all the issues that make it important for India to complete the modernization of its Patent Office. Though no patent system can eliminate subjectivity altogether, perhaps _the_ overriding implementation issue separating a functioning system from a nonfunctioning one lies in the role of subjective decisionmaking; the less inherent subjectivity, the better the system. The centrality of such consistency played an important role in the U.S. analysis of the early 1980s: it led to both 47