The Hindu : National : Left warns against `hasty passage' of amended Patents Act

Online edition of India's National Newspaper
Friday, Nov 26, 2004

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Left warns against `hasty passage' of amended Patents Act

By Our Special Correspondent

NEW DELHI, NOV. 25. The Left parties have cautioned the Government against "hasty passage" of amendments to the Indian Patents Act to make it Trade-Related Aspects of Intellectual Property Rights (TRIPS) compliant.

"We are strongly of the opinion that any hasty passage of the Bill (amendments 2003), without any informed discussion, will not be in the larger interests of the country. We give below a list of amendments that, we feel, need to be incorporated in the existing Indian Patents Act and the draft Bill 2003. These we believe are the minimum that need to be done to safeguard national interests," the parties said in a three-page note submitted to the Government on Wednesday.

The broad areas of concern of these parties include patentable subject matter; differentiating inventions; compulsory licensing; export by a licensee; transitional agreement and mailbox; royalty payment; and pre-grant opposition.

The Left parties said the Government must make full use of the "flexibilities" available in the TRIPS agreement and recounted the experience of many countries since the agreement came into force in 1995. They cited the instance of how an Indian pharmaceutical company was offering drugs for HIV-AIDS particularly in Africa at vastly reduced prices whereas global companies were selling them at 20-50 times their actual cost by seeking shelter under laws mandated by the agreement.

`Reserve term'

On patentable subject matter, the parties said that the term "invention" should be reserved for a `new' product or process involving an inventive step and capable of industrial application. All three criteria of `novelty,' `inventive step' and the quality of being "capable of industrial application" must be insisted upon especially to limit the number of applications and discourage frivolous claims.

They said the Indian Patent Act allows patenting of "micro-organisms" and "non-biological and microbiological processes." Patenting of these inventions are under mandated review by the World Trade Organisation since 1999 and in the absence of any decision, patenting of these should not have been provided for. All life forms and research tolls for biotechnology should be excluded from the scope of patentability.

Compulsory licensing

Compulsory licensing, they said, was an instrument available in the TRIPS agreement to safeguard the legitimate interest of consumers by limiting the possibilities of monopolies being created in different sectors. "Unfortunately the Indian Act has not made full use" of such provisions unlike Brazil and China which have passed legislations allowing compulsory licensing in cases where the patentee does not respond within stipulated time the offer of reasonable commercial terms and conditions to the patent holder.

Similarly, the TRIPS agreement allows export by manufacturers who produce through a compulsory licence, and suggested that the same be incorporated in the amendment so that the Indian pharmaceutical companies could export drugs to developing countries at relatively lower prices to the mutual benefit of both.

The agreement also provided for receipt of patent applications through a mailbox between January 1995 and December 2004, which are to be examined after January 1. On being granted, the patent would remain effective for 20 years from the date of application. The parties said that in cases where production had been started by any enterprise during the transition period, it should be allowed to continue production on payment of a nominal royalty instead of being accused of violating the patent. The quantum of royalty payment should be explicitly stipulated if compulsory licensing was issued.

There was no justification in removing the existing pre-grant opposition from the Act in the proposed amendment Bill. They said countries such as Australia, Japan, Canada and the United Kingdom provide for pre-grant opposition in their laws.

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