The Hindu : New Delhi News : Ordinance expands product patent facility

Online edition of India's National Newspaper
Wednesday, Dec 29, 2004

New Delhi

New Delhi

Ordinance expands product patent facility

By Our Special Correspondent

NEW DELHI, DEC. 28. An ordinance promulgated on Sunday to amend the Indian Patents Act has extended patent protection to products in all fields of technology, including drugs, food and chemicals, which were earlier excluded.

It has deleted the provision relating to Exclusive Marketing Rights (EMRs), which would now become redundant, and introduced a transitional provision for safeguarding the granted EMRs.

The third amendment is introduction of a provision to enable grant of compulsory licence for export of medicines to the countries that have insufficient or no manufacturing capacity to meet emergent public health situations, in accordance with the Doha Declarations on Trade Related Intellectual Property rights (TRIPs) and public health.

Another feature is introduction of a facility to oppose a patent application prior to its grant as well as facility for post-grant opposition. The Government has improved upon this amendment as the earlier legislation had a post-grant opposition facility with very weak pre-grant opposition facility.

Also, to protect those who have introduced products during 1995 — when the WTO came into existence — and 2005, the amendment adds a new proviso to circumscribe rights in respect of mailbox applications. The applications for patents are those which have been put up since 1995 and were pending decision till product patent facility was available. It has now been stipulated that patent rights for mailbox applications would be available only from the date of grant of patent and retrospectively from the date of publication.The ordinance also strengthens the provision relating to national security to guard against patenting abroad of dual use technologies.

Another important addition in the ordinance is the provision of patent protection to embedded software in any hardware. Giving an example, official sources said that till now, while a cellphone had patent protection, the software inside it did not. Now, the embedded software would also get patent protection, something the Indian IT industry had wanted. There has also been rationalisation of provisions relating to time-lines with a view to introducing flexibility and reducing the processing time for patent applications and simplifying and rationalising the procedures.

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