The Hindu : Business : `Patents Ordinance leaves little scope for abuse'

Online edition of India's National Newspaper
Wednesday, Feb 09, 2005

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Business

`Patents Ordinance leaves little scope for abuse'

By Our Special Correspondent

CHENNAI, FEB. 8. The Patents (Amendment) Ordinance, 2004, does not leave scope for either "evergreening" (attempts at undue extension of validity) of patents or sly introduction of patents for life forms other than microorganisms, the Secretary (Department of Industrial Policy and Promotion) of the Union Government, Ashok Jha, said here today.

Finalised after consultations with all stakeholders, the ordinance not only brings into effect India's obligations under the TRIPS (trade related intellectual property rights) agreement of the World Trade Organisation (WTO) but also has reduced sharply the timelines available for processing of patent applications, Mr. Jha said.

Replying to discussions with senior professionals in the IPR fraternity and entrepreneurs under the auspices of the Federation of Indian Chambers of Commerce and Industry (FICCI), Mr. Jha denied that the insertion of the word "mere" in Sec. 3 ("what are not inventions") to read as "mere new use for a known substance" restricted the non-patentability and gave rise to ambiguity and possible misuse. He said that on the contrary, the word was inserted to impart clarity and that without it, the sub-section would have remained ambiguous. "There is no need to read wider meaning into it", he said.

Mr. Jha also said the law as amended did not provide for protection of different dosages or uses of drugs and thus did not lend any scope for evergreening of patents.

He said the provisions on non-patentability were adequate to rule out what some professionals described as possible attempts at "back door entry of patents on plants and animals" on the ground that biotechnological processes resulted in new seeds/plants and the like.

On the reintroduction of restrictions on residents applying for foreign patents less than six weeks before applying for an Indian patent (Sec. 39), he said this was done at the instance of the Indian scientific community which felt that many technologies were of dual use and which wanted the restriction made universal and not confined to those related to atomic energy and defence. Some professionals, however, pointed that the restriction had earlier been totally removed (in 1999) to facilitate filing of applications under the PCT (Patent Cooperation Treaty). The restrictions discriminated against residents/citizens of India and violated the spirit of TRIPS, they alleged.

The Secretary said the ordinance had to be promulgated because the process of consultations with stakeholders continued till the third week of December and there was no time (before the TRIPS deadline of January 1, 2005, to reintroduce product patents for foods, drugs and agrochemicals) for Parliament to consider amendments.

The low level of investment in research and development (and thus of innovation) in India was itself the result of weak patent protection and hence the large number of patents held by foreigners compared to Indian companies was not a valid argument against restoration of product patents for drugs, and foods. The ordinance had already induced thinking among foreign companies to undertake R & D in India.

Mr. Jha said the Government would consider suggestions to include all software under the patent law (and not merely embedded software) because copyright was a weak protection and could be held simultaneously by several people who produced a creative work independently. He, however, added that the decision to retain software in general under the copyright law was a result of views conveyed by the Information Technology Ministry and the software industry.

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