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Saturday, Mar 19, 2005

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Amendments to Patents Act introduced

By Our Special Correspondent

NEW DELHI, MARCH 18. The Government today introduced the third set of amendment to the Patents Act, 1970 in Parliament to meet India's obligations under the agreement on Trade Related Intellectual Property Rights (TRIPs) and avoid any retaliatory action under the disputes mechanism of the World Trade Organisation (WTO). The Bill replaces the patents amendment ordinance promulgated on December 26, 2004, to meet the deadline of January 1, 2005 to meet the commitment under the TRIPs agreement.

With this amending legislation, product patents will be introduced in drugs, food and chemicals sectors. All other fields of technology are already covered by product patent protection, in contrast to the earlier system of process patents.

In the statement of objects and reasons, the Commerce and Industry Minister, Kamal Nath, has described the time frame for this set of patent amendments through an ordinance as being ``most crucial.'' Any slippage in meeting the deadline of January 1, 2005 had the potential of inviting a retaliatory action under the WTO disputes mechanism. Having availed itself of the entire ten-year period provided under TRIPs agreement, India had no legal basis to defend its default on the deadline, he said.

The past record of delayed implementation would also not have helped the Indian case, he said. This default would also have created a legal vacuum for ``mailbox'' applications for patents as there would not be any mechanism to deal with them after January 1, 2005. ``Finally there would have been an erosion of India' s credibility in the international field.''

Among the key features of the Patents Amendment Bill, 2005 are modifications of provisions relating to exclusive marketing rights, as they were part of transitional arrangements. It has also introduced a provision for enabling grant of compulsory licence for export of medicines to the countries, which have insufficient or no manufacturing capacity to meet emergent public situations, a clause allowed under the Doha declaration on TRIPs and Public Health. In addition it has modified provisions relating to opposition procedure with a view to streamline the system by having both pre-grant and post-grant opposition in the Patent Office.

The Bill seeks to amend and strengthen the provisions relating to national security to guard against patenting abroad of dual use technologies. It also seeks to modify and clarify the provisions relating to patenting of software related inventions, when they have technical application to industry or in combination with hardware.

The other significant features of the Bill are amendments to provisions relating to the Intellectual Property Appellate Board to extend its jurisdiction to revocation of patents and also amend some provisions to harmonise them with the Patent Cooperation Treaty to which India is a signatory. The processing time for patent applications is also sought to be reduced as well as to simplify the procedure.

The Patents Act has already been amended in March 1999 and June 2002 to meet the country's obligations under the TRIPs agreement, which forms part of the agreement establishing the WTO. The statement of objects and reasons said, given the importance of this issue, the Government undertook broad-based and extensive consultations involving different interest groups on aspects critical to changes, which were necessary in the Patents Act.

Before carrying out the second amendment to the Patents Act in 2002, a joint committee of both Houses of Parliament examined all aspects and recommended various provisions to provide necessary and adequate safeguards for protection of public interest, national security, bio-diversity and traditional knowledge besides public health and nutrition. These recommendations were incorporated in the second amendment.

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