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<DEFANGED_DIV class=Normal><DEFANGED_SPAN style="FONT-WEIGHT: bold">What changes does our Patent
Act need?</DEFANGED_SPAN></DEFANGED_DIV>
<DEFANGED_DIV class=Normal><DEFANGED_SPAN style="FONT-WEIGHT: bold"> Anand Grover
</DEFANGED_SPAN><BR><DEFANGED_SPAN style="FONT-WEIGHT: bold">Advocate </DEFANGED_SPAN><BR><DEFANGED_SPAN
style="FONT-WEIGHT: bold">Bombay High ( Economic Times 201, December
2004)</DEFANGED_SPAN><BR><BR>Court India has had to introduce changes in its patent law
by January 1, 2005, because of its obligations under the TRIPS agreement. There
are basically two types of patents — product and process. <BR><BR>The protection
of a product patent produces an absolute monopoly, stifles competition and
permits high pricing. Process protection, however, allows for more than one
producer, competition and restrains prices. <BR><BR>That has been the experience
of the working of the Indian Patent Act, passed by Parliament in 1970 after much
deliberation, and reports of two committees headed by eminent judges.
<BR><BR>India, as one of the main leaders of developing countries, was able to
secure that the TRIPS provides for only the minimum conditions, allowing a large
amount of flexibility for the signatories. TRIPS requires that patents be
granted for an invention that is new, involves an inventive step and is capable
of industrial application. <BR><BR>Protection has to be granted both for
products and processes, and for a minimum period of 20 years. Compulsory
licences can be provided for, but with certain safeguards. <BR><BR>We have
already, to a large extent, implemented our obligations under TRIPS by
amendments introduced in 1995 and 2002. Thus the concept of what is patentable,
protection for both product and process patents, the period of protection of 20
years, the provision of the mail-box facility for product patent applications to
be opened only after December 31, 2004 and, in the interim period, between
January 1, ’95 and January 1, 2005, for the granting of EMRs, and compulsory
licences, have already been incorporated with all the necessary safeguards.
<BR>Thus, to comply with TRIPS now, we will need to make minimal amendments;
those will be needed to process product patent applications. <BR><BR>However,
the NDA Bill, (the UPA government appears to have adopted that Bill despite its
commitment in the CMP to use the flexibility in TRIPS ) seeks not only to go
beyond what is required under TRIPS, but is detrimental to the Indian pharma
industry -- and consumers too. I list some of the main objections to the
proposed amendment as follows: <BR><BR><DEFANGED_SPAN style="FONT-WEIGHT: bold">New use:
</DEFANGED_SPAN>Section 3 of the Act provides for what is to be excluded from being
patented. At the moment the new use of any product is not patentable. The
proposed amendment seeks to exclude what is mere new from being patentable.
Apart from the fact that the new use of an old product would be patentable, the
use of the word “mere” will only help lawyers and encourage endless litigation.
The expression needs to be removed. <BR><BR><DEFANGED_SPAN
style="FONT-WEIGHT: bold">Pre-grant opposition: </DEFANGED_SPAN>As of now, after the
patent controller’s examination for patentability, novelty and priority, is
published, any member of the public has the right to make objections.
<BR><BR>The objector is treated as a party and has a right to participate in all
the proceedings in the grant of a patent. This procedure is based on the
understanding that the public is vitally concerned with the ultimate effect of
the grant of a monopoly. </DEFANGED_DIV>
<DEFANGED_DIV class=Normal>Now pre-grant opposition is sought to be done away with, and
will be limited only to patentablity and the wrongful furnishing of information.
Also, the objection will only be taken on record; the objector will not be
considered to be a party. It is vital that pre-grant opposition is preserved in
its present form. <BR><BR><DEFANGED_SPAN style="FONT-WEIGHT: bold">Compulsory licensing
</DEFANGED_SPAN>: The procedures provided for are cumbersome and need to be simplified
and made liberally applicable, based on a fixed percentage of royalty on the
grant of patent, and not after three years. <BR><BR>There is, in addition, no
need that exports to a LDC with little, or no, manufacturing capacity should
require a compulsory licence by the importing country, a LDC. Pertinently, LDCs
which are free from complying with TRIPS yet may not have a patent regime. The
question of the issue of a compulsory licences will, hence, not arise.
<BR><BR>This provision does not help the consumer in the LDC or Indian pharma
companies. This, like all the provisions which are sought to be introduced that
go beyond TRIPS, only helps MNCs; the latter want to block generics from
entering countries who desperately need cheap drugs without which, as the AIDS
crisis in those countries has so tragically shown, vast numbers of their
citizens will die prematurely. This norm too must go. <BR><BR><DEFANGED_SPAN
style="FONT-WEIGHT: bold">(The author is also Co-ordinator for Affordable
Medicines & Treatment Campaign) </DEFANGED_SPAN></DEFANGED_DIV></DEFANGED_DIV></BODY></HTML>