Intellectual Property Rights are rewards for the originality, creativity and industry of the author, inventor, artist.

The reward to author, inventor or artist is in form of monopoly conferred in view of statutory enactments. In India, except for rights of trade secrete, all IPR are codified i.e. there is separate statute on each of the right. Therefore, rights of the owner of IPR, are as per provisions of the respective statutes.

Rasesh Parikh, Advocate Baroda School of Legal Studies

2/20/2014

Kind of IPR Trademark Copyright

Owner

Subject

Statue The Trademark Act, 1999

Manufacturer/ Supplier Product/service Artist

Literary work, Artistic The Copyright Act, 1957 work, Musical work Cinematographic Work, Broadcasting Rights

Patent Design

Inventor Artist

Science

The Patent Act, 1970

Literary Work, 3 The Design Act, 2000 dimension application of literary work

Plant Variety Protection Owner/inventor

Plants

The Protection of Plant Varieties and Farmers Protection Act, 2001

The Semi- Conductor Chip rights Act, 2/8/2014

Semi-Conductor Chip

Engineer-Inventor

Chips Baroda School of Legal Studies

Rasesh Parikh, Advocate

All the rights are territorial rights granted by Government. These rights have definite life except trademark which can be theoretically extended infinitely by way of renewal.
These are statutory rights as there are separate legislations for each of the above mentioned rights. There is nothing like worldwide patent rights or worldwide trademark rights. To claim rights in each country, there has to be registration of this right as per national laws of the jurisdiction.

To own IPR is like owning any asset as there is cost in creating these assets and maintenance of the same. e.g. cost of prosecuting patent application, trademark application etc.. are cost in creating the assets. cost of renewal fees, cost of enforcing the rights are maintenance cost.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Feelings and Reactions that patent evokes TRIPS eroding livelihood, food security : Vandana Shiva

Patent wars: Has India taken on Big Pharma and won? The Guardian

India adopts WTO patent law with Left Front support: World Socialist Web Support More myths, less informed, mis-informed and biased messengers compounds myths People on the extreme point of view as far as patents and particularly patents in Pharmaceuticals and Bio-technology are concerned are not totally incorrect in their point of view but surely not entirely correct also..

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Patent is the blend of science, commerce and law. Heady Cocktail which can be discussed on and on without there being consensus. It falls neither under the exclusive domain of Lawyers and attorneys nor under the exclusive domain of scientists. There needs to be convergence for proper justice to patentee and public at large.

Patent is reward to the inventor for his industry, efforts and skills. The best way to reward inventions is to grant monopoly to the inventor to exploit commercially his invention. There is quid pro quo in the sense that patentee lets world know his inventions in detail and thus adds to the pool of the knowledge and society in return grants him monopoly. There is no equilibrium and where there is disproportionate imbalance in this, it attracts attention by way of litigation, government action etc.. Invention is different than discovery. Invention in the patent parlance involves new, useful and non-obvious addition to knowledge or efficiency in tangible form. Monopoly granted by Government to inventor for specific period to practice invention (economically exploit) over the invention is called patent.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

Instances that have evoked passionate debates and hogged media attention world wide

Oncomoouse: The OncoMouse or Harvard mouse is a type of laboratory mouse that has been genetically modified using modifications designed by Philip Leder and Stewart of Harvard University to carry a specific gene called an activated oncogene . The activated oncogene significantly increases the mouses susceptibility to cancer, and thus makes the mouse suitable for cancer research. Subsequently, the Harvard University assigned this patent to DuPont. The USPTO found that the patent expired in 2005, which means that the Oncomouse is now free for use by other parties (although the name is not, as "OncoMouse" is a registered trademark). Patent applications on the OncoMouse were filed back in the mid-1980s in numerous countries such as in the United States, in Canada, in Europe through the European Patent Office (EPO) and in Japan.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Dolly (5 July 1996 14 February 2003) was a female domestic sheep, and the first mammal to be cloned from an adult somatic cell, using the process of nuclear transfer. She was cloned by Ian Wilmut, Keith Campbell and colleagues at the Roslin Institute, part of the University of Edinburgh, and the biotechnology company PPL Therapeutics near Edinburgh in Scotland, the United Kingdom. The funding for Dolly's cloning was provided by PPL Therapeutics and the Ministry of Agriculture. She was born on 5 July 1996 and died from a progressive lung disease 5 months before her seventh birthday. She has been called "the world's most famous sheep. The Case of Dolly has nothing to do with Patent but this case evoked debate about research on genetics and creating trans-genetic animals.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Novartis v. Union of India & Others is a landmark decision of Supreme Court on the issue of whether Novartis could patent Gleevec in India. The prosecution of case consumed seven-years. The Supreme Court upheld the Indian patent office's rejection of the patent application. The case involved interpretation of s.3(d) of the Patent Act, 1970 as amended pursuant to TRIPS compliance for patent product.

The patent application at the center of the case was filed by Novartis in India in 1998, after India had agreed to enter the World Trade Organization and to abide by worldwide intellectual property standards under the TRIPS agreement.

Apart from these, other cases where debate about grant and abuse of patent are case of US patent for Neem and Turmeric. In case of former, patent was granted for anti-pest properties of Neem which are otherwise inherent in it. In case of patent for Turmeric, it was granted for medicinal application of Turmeric.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

World Intellectual Property Organization (WIPO)

WIPO is the global forum for intellectual property services, policy, information and cooperation. It is a self-funding agency of the United Nations, with 186 member states. Its head quarter is at Geneva, Switzerland. WIPO was created after Stockholm Convention in 1967 that is the last treaty following Paris Convention. Its mission is to lead the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all. Its mandate, governing bodies and procedures are set out in the WIPO Convention, which established WIPO in 1967.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

World Trade Organization (WTO) WTO replace The General Agreement on Tariffs and Trade (GATT) in 1995. GATT was a multilateral agreement regulating international trade. According to its preamble, its purpose was the "substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis." It was negotiated during the United Nations Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). The 75 existing GATT members and the European Communities became the founding members of the WTO on 1 January 1995. The other 52 GATT members rejoined the WTO in the following two years (the last being Congo in 1997). Since the founding of the WTO, 21 new non-GATT members have joined and 29 are currently negotiating membership. There are a total of 157 member countries in the WTO, with Russia and Vanuatu being new members as of 2012.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organization and providing an autonomous legal system according to which European patents are granted. The term European patent is used to refer to patents granted under the European Patent Convention. A European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents, subject to central revocation or narrowing as a group. The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application. A single filing of an international application is made with a Receiving Office (RO) in one language. It then results in a search performed by an International Searching Authority (ISA), accompanied by a written opinion regarding the patentability of the invention, which is the subject of the application.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

The relevant national or regional authorities administer matters related to the examination of application (if provided by national law) and issuance of patent. A PCT application does not itself result in the grant of a patent, since there is no such thing as an "international patent", and the grant of patent is a prerogative of each national or regional authority. A PCT application, which establishes a filing date in all contracting states, must be followed up with the step of entering into national or regional phases to proceed towards grant of one or more patents. The PCT procedure essentially leads to a standard national or regional patent application, which may be granted or rejected according to applicable law, in each jurisdiction in which a patent is desired. Evergreening: Evergreening is a term used to label practices that have developed in certain jurisdictions wherein a trifling change is made to an existing product, and claimed as a new invention. Honble Supreme Court in case of Novartis AG ..

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

How patent application is prosecuted?

1.File provisional or complete specification. 2.If provisional specification is filed, then file complete specification within 12 months from the date of application of provisional specification. This date is called priority date. S.11 defines priority date. This is the cut-off date from which rights of patentee are reckoned. This is the date to decide about novelty and nonobviousness of the invention. 3.File request for examination of the patent application. 4.Meet objections of examiner. In this process file history is generated. There will be amendment in the specification. Inventor will give further definition to terms, cite further example, drop some of the terms and amend the claims. 5.Once examiner is satisfied, the invention is advertised in the journal of the Patent Office.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

6.If there are objections, then it is called pre-grant opposition. The period for opposition is from publication of the application till grant thereof. In India, any person can file objections. Grounds for the opposition are mentioned in Sec. 25(1) of the Patent Act, 1970. Before amendment of 2005, person interested can file opposition. Once there is adjudication of pre-grant objection, patent is granted. 7.There is further period of 1 year available for opposing grant of patent which is one year after grant of the patent publication. This opposition can be filed by person interested only. Grounds for opposing patent after grant thereof are mentioned in Sec. 25(2) of the Patent Act, 1970. The grounds for opposition are exhaustive and challenge cannot be laid on any grounds apart from what is mentioned in Sec. 25. 8.Opposition of patent application at the stage of grant lends credibility to invention if it is granted as patent. Successfully dealing with opposition at pregrant and post-grant stage helps while enforcing the patent.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

9.The proceedings before the Controller create file history. This file history becomes important while claim construction to decipher the meaning to the words and reading the mind of inventor.
10.Proceeding for revocation of the patent can be initiated under section 64 of the Act by person interested or by Central Government. The jurisdiction of revocation petition is with Intellectual Property Appellate Board. 11.Revocation of patent is also defense of the person accused of infringement and in a suit filed for infringement of patent, Defendant can set up counter claim to revoke the patent. In such case, the High Court will have jurisdiction to decide counter-claim as well as suit for infringement.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Two kinds of patent litigation

Opposition/Revocation Infringement

Controller of Patents

Civil Court/High Court

Intellectual Property Appellate Board

High Court
High Court

Supreme Court of India

Rasesh Parikh, Advocate

Supreme Court of India

Baroda School of Legal Studies 2/8/2014

Four Important ingredients for an invention to become patent. Invention is different than patentablility of the same. 1. 2. 3. 4. Subject matter must be patentable. Novel (Not anticipated) Useful Non-obvious

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Subject Matter of Patent SECTION 3 : What are not Inventions The following are not inventions within the meaning of this Act,(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws; (b) an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;" (c) the mere discovery of a scientific principle or the formulation of an abstract theory "or discovery of any living thing or non-living substance occurring in nature";

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

"(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation.-For the purposes of this clause, salts, esters ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy."] (e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; (g) [* * * * *] (h) a method of agriculture or horticulture; (i) any process for the medicinal, surgical, curative, prophylactic,["diagnostic, therapeutic"] or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

(j) plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

(k) a mathematical or business method or a computer programme per se or algorithms; (l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information; (o) topography of integrated circuits; (p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components."

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Novelty or lack of anticipation: The definition of invention Sec. 2(j) mentions the requisite of novelty in terms of "invention" means a new product or process involving an inventive step and capable of industrial application.

New product or process means absolutely novel. The invention should not be part of knowledge base as on date of priority. It is also stated as invention should not have been anticipated either by prior use or prior knowledge.

In United Kingdom the words used to describe this test is the invention should not be part of state of art. The word State of art is defined under EPC and therefore, Patent Act of UK borrows this phrase.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

In USA, the test of novelty is bit different as the prior knowledge anywhere in world or prior use in USA are considered as anvil to test novelty. S.102 of 35 USC.

The bar for novelty is to stop unscrupulous inventor from appropriating something which is already there in public domain. The claim for patent will fail if it is established that the invention claimed was available in public domain.

The test of novelty will be based on a document. Citing several documents to show that invention was anticipated is not envisaged by the Act. Anticipation occurs only when some single prior article, patent or publication contains within its four corners, every elements of the claim in question. Generally, earlier patents in the subject which are called prior art are cited apart from encyclopedia and research papers.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Useful: An invention to become patent needs to be useful i.e. capable of industrial application. If it is mere academic knowledge or no economic gain can be achieved out of it, then it is not patentable.

Non-obvious ( Lack of inventiveness)

The toughest hurdle for any patentee to pass is test of non-obviousness. Here non-obviousness is judged from the point of view of person skilled in the art. An invention should not look obvious to person skilled in the art. If it is, then claim for patent goes. This test is unrealistic as Controller or Court presumes about person who is skilled in the art/science. Court imputes him up to date knowledge and then judges from his eyes whether invention looks obvious to him. While testing patent on this ground, the knowledge from more than one source can be combined which is not the case when test is of novelty.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

SECTION 10 : Contents of specifications (1) Every specification, whether provisional or complete, shall describe the invention and shall begin with a title sufficiently indicating the subject- matter to which the invention relates.

(2) Subject to any rules that may be made in this behalf under this Act, drawings may, and shall, if the Controller so requires, be supplied for the purposes of any specification, whether complete or provisional; and any drawings so supplied shall, unless the Controller otherwise directs, be deemed to form part of the specification, and references in this Act to a specification shall be construed accordingly.
(3) If, in any particular case, the Controller considers that an application should be further supplemented by a model or sample of anything illustrating the invention or alleged to constitute an invention, such model or sample as he may require shall be furnished "before the application is found in order for grant of a patient, but such model or sample shall not be deemed to form part of the specification.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

(4) Every complete specification shall(a) fully and particularly describe the invention and its operation or use and the method by which it is to be performed; (b) disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection; and (c) end with a claim or claims defining the scope of the invention for which protection is claimed.

(d) be accompanied by an abstract to provide technical information on the invention :

Provided that,(i) the Controller may amend the abstract for providing better information to third parties; and .

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

(5) The claim or claims of a complete specification shall relate to a single invention, or to a group of inventions linked so as to form a single inventive concept, shall be clear and succinct and shall be fairly based on the matter disclosed in the specification." (6) A declaration as to the inventorship of the invention shall, in such cases as may be prescribed, be furnished in the prescribed form with the complete specification or within such period as may be prescribed after the filing of that specification. (7) Subject to the foregoing provisions of this section, a complete specification filed after a provisional specification may include claim in respect of developments of, or additions to, the invention which was described in the provisional specification, being developments or additions in respect of which the applicant would be entitled under the provisions of section 6 to make a separate application for a patent.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

SECTION 11 : Priority dates of claims of a complete specification (1) There shall be a priority date for each claim of a complete specification. (2) Where a complete specification is filed in pursuance of a single application accompanied by(a) a provisional specification; or (b) a specification which is treated by virtue of a direction under sub-section (3) of section 9 as a provisional specification, and the claim is fairly based on the matter disclosed in the specification referred to in clause (a) or clause (b), the priority date of that claim shall be the date of the filing of the relevant specification. .. (8) A claim in complete specification of a patent shall not be invalid by reason only of-

(a) the publication or use of the invention so far as claimed in that claim on or after the priority date of such claim; or
(b) the grant of another patent which claims the invention, so far as claimed in the first- mentioned claim, in a claim of the same or a Rasesh Parikh, Advocate Baroda School oflater Legal priority date.
Studies 2/8/2014

Complete specification & Claim Construction:: Complete specification describes invention in detail. It has following sections: 1. 2. 3. 4. 5. 6. Title Background of the invention Description Drawings Abstract Claims

The claims are last portion of the complete specification.

There are two kinds of claims viz. independent claims and dependent claims. After narrating entire invention, inventor sets out boundaries of his monopoly by way of claims. The drafting of claim is utmost important as future claim for infringement and competition that inventor will face when invention is commercially exploited, will depend upon the language of the claims.
Rasesh Parikh, Advocate Baroda School of Legal Studies

2/8/2014

There are two ways of drafting the claims. If claims are drafted with broad view, then fold of protection increases but at the same time ambiguity in claims also increases. This ambiguity may subsequently become ground of challenge in opposition/revocation proceedings.

The claims can be drafted with too much of precision and in this way the scope of the protection becomes narrow. This may allow accused product/process to go out of the purview of infringement.

Consisting of Vs. Comprising of.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

The patentee is lexicographer of complete specification and he is free to give meaning to the words by way of definition, example and drawings.

The words in the complete specification are given plain meaning unless it is shown that inventor has assigned special meaning to terms.

The language of the specification and claims should be as clear as possible so that accused product does not go out of patent purview.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

There are two kinds of evidences for claim construction: intrinsic evidence external evidence

Intrinsic Evidence: Definition, examples and drawings within complete specification are intrinsic evidence. The file history is also one of the intrinsic evidence.

External Evidence: Encyclopedia, research papers, prior arts and dictionaries serve as external evidence.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Infringement

The Patent Act, 1970 does not define infringement. Sec. 48 confers rights upon patentee to exclude others from making, using, offering for sale, selling, importing the patented product or process. The issue of infringement is two tier process. 1.Construing the claims of the patent 2.comparing the accused product/process to the construed claims. Literal Infringement When every element and limitation of the claim is found in the accused device literally, infringement is proved. Infringement is avoided if accused product does not have all elements of the claim. The accused product must read on the claims of the patent.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Doctrine of Purposive Construction: Patent claims are analysed in accordance with the purposive construction doctrine. This doctrine requires the Court to look at what the patentee intended (i.e. the purpose of the patent) rather than adopting a strictly literal interpretation of the claims. The question in each case is: whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used, would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked. In this test the scope of a patent is determined by reference to the ordinary meaning capable of being given to the words of each claim by a person skilled in the technology covered by the patent. That person (known as the notional skilled addressee) may comprise a team of individuals, each with distinct skills: This person is a skilled technician in the art in question, knowledgeable in the relevant literature (including patent specifications and such material as would be discovered on making a diligent search), but unimaginative and with no inventive capacity Where the subject matter covers more than one discipline, the notional Rasesh Parikh, Advocate School addressee need not be an individual Baroda but may be of a Legal research team. 2/8/2014
Studies

The Doctrine of Equivalence:

In United States of America, the theory followed for infringement of patent is Doctrine of Equivalence wherein accused product is said to have infringed patent if all essential integers of the patent are found in the accused product. The test is if accused product performed substantially the same function in substaintially the same way then infringement is said to have occur.

In India, there are not much decided cases as far as infringement of patent is concerned. In case of Raj Prakash Vs. Mangat Ram Choudhary reported at AIR 1978 Del 1 decided based on doctrine of equivalence.

Defenses in Action of infringement: The defendant in an action for infringement can take defenses as mentioned in sec. 64 of the Patent Act, 1970. The Defendant can set up counter claim for revocation of patent on any of the grounds mentioned in sec. 64

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

Sec. 84 (Compulsory Licensing): Any person interested can apply to Controller after three years from the grant of patent for compulsory licensing of the patent.

Grounds for making application for compulsory licensing:

(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or (b) that the patented invention is not available to the public at a reasonably affordable price, or (c) that the patented invention is not worked in the territory of India.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.[2] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

TRIPS Amendments in Patent Act, 1970- Indian Pharmaceuticals Industry

Indian Pharmaceuticals industry has shown inverse relationship with strict patent regime especially product patent. Honble Apex Court in the case of Novartis AG has approved the emprical study conducted whereby it abundantly clear that Indian Pharmaceurtical Industry has grown leaps and bound after enactment of Patent Act, 1970 whereby only process patent was allowed. Pharmaceutical Industry is one of the key industries (approximately $26 billion in April 2013) in the era of industrialization and policy makers world over are conscious about need to have strong domestic pharmaceutical industry. The developed countries have used strong patent regime so that its pharmaceutical industry remains robust whereas developing and under-developed countries have preferred liberal paten regime so that generic drugs can be made by indigenous companies.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014

TRIPS a concern for Indian Pharmaceutical Industries in 1995 to 2005: Indian Pharmaceutical industry had trade deficit in 1970 i.e. imports of medicine and drugs accounted more than exports After introductions of Patent Act, 1970 whereby product patent was done away and life of patent was reduced to 7 years, the Indian Pharmaceutical industry soared and by 1990, it was net exporter. This is due to Indian pharmaceutical companies specialized in production of bulk drugs at considerably lower cost than MNCs. TRIPS is a typical blend of trade and intellectual property rights. In fact, before WTO, GATT was managing trade related treaties and WIPO was managing treaties with respect to Intellectual Property rights. There was never convergence of trade and IP. TRIPS mandated that member countries have to formulate national laws with respect to Intellectual Property Rights on the lines of TRIPS. This will ensure harmonisation of IP laws across the nations.

The single most significant of TRIPS was product patent and it has direct bearing on the sustainability and growth of Indian Pharmaceutical Companies. Indian Pharmaceutical Industries have prospered due to making generic drugs and through reverse engineering. Under the new patent regime, this is not possible.
Rasesh Parikh, Advocate Baroda School of Legal Studies 2/8/2014

One of the measures taken by legislature to provide protection to Indian Pharmaceutical Industries and public at large was to take bar of patentability at higher than that in the Western Countries. E.g. Sec. 3(d) was amended, enhancing of efficacy was added as precondition for inventive step, two-tier opposition was introduced etc

The higher standards of patentability ensure public good as not all the patent applications are result of inventions. E.g. During 1995-2004, there were 7,520 patent applications by MNCs and 1406 patent applications by Indian Companies. During this time there were 297 new chemical entities approved by USFDA. This clearly suggests that all the applications are not inventions!!!!

The Companies like to perpetuate their monopoly through patents though life of the patent is 20 years. With cosmetic changes, new patent applications are preferred so that it elongates the life of the monopoly. E.g. Gleevec.

Rasesh Parikh, Advocate

Baroda School of Legal Studies

2/8/2014