INDIAN PATENT LAWS VIS - A - VIS LIBRARY PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY
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INDIAN PATENT LAWS
VIS - A - VIS
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PARIS CONVENTION FOR THE
PROTECTION OF INDUSTRIAL PROPERTY - extracted text
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INDIAN
PATENT
b
LAWS
VIS - A - VIS
LIBRARY
PARIS CONVENTION FOR THE
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PROTECTION OF INDUSTRIAL BROPERW
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PAPERS
CONTENTS
INDIAN PATENTS ACT VIS - A - VIS PARIS CONVENTION
- BACKGROUND AND SALIENT FEATURES
II.
PATENT SYSTEM : HISTORICAL PERESPECTIVE
- IMPORTANT COUNTRIES
III.
REASONS BEING. GIVEN BY PROPONENTS OF INDIA
JOINING THE PARIS CONVENTION
IV.
JOINING OF PARIS CONVENTION WOULD NECESSITATE
AMENDMENTS TO INDIAN PATENTS ACT- LEGAL OPINIONS
V.
ADVERSE IMPACT OF INDIA JOINING THE PARIS
CONVENTION/CHANGING OF PROCESS PATENT
INTO PRODUCT PATENT
VI.
FIELDS OF EXCLUSION FROM PATENTABILITY IN
SELECTED COUNTRIES
VII.
REPRINT OF DR. SURENDRA J. PATEL'S ARTICLE ON
PITFALLS OF THE PARIS CONVENTION
FORUM FOR PRESERVATION OF
INDIAN PATENT LAWS
302, Poonam Chambers, B-Block,3rd Floor,
Dr. A.B. Road, Worli, BOMBAY - 400 018
.0.1
~eMMiiNITY HEALTH
INDIAN PATENTS ACT VIS-A-VIS PARIS CONVENTION
BACKGROUND
SALIENT FEATURES
AND
The need of a Patent system in industrialised countries is quite
different
Whereas the
from that of developing countries.
developed countries have traditionally been strong advocates of
the developing countries have been stressing
the Patent System,
that the system should help in their
development of
indigenous
manufacturing facilities.
It
is
interesting
to note
the
world
U.S.A. ,U.K. ,Germany,
France,
registered
in
that
85% of
the
total patents
are
owned
by
MNCs
Switzerland and Japan.
of
the
Even more
interesting is that not more than 5% of
these patents are used
for local production in the third world.
This clearly indicates
that it is the business policy of the developed countries to
manufacture their patented products at locations of their choice
and market them worldwide.
PARIS CONVENTION
In order to protect their
patented products,
advanced countries signed a Treaty in
industrially
1883 called the Paris
Convention for the protection of Industrial Property.
The
original Convention of 1883 has been revised only six times. The
Convention had 97 members as on 1.1.1986. The countries to which
the
Paris
Convention
applies
constitute a
protection of industrial property.
Union
for
the
Nationals of all countries of
the Union have the same protection as their own nationals and the
same legal remedies against infringements.
INDIAN PATENTS ACT
In 1856 when India was under British rule,
was enacted.
the first Patent Act
In 1911 a comprehensive Patents and Designed Act
was enunciated and this Act remained operative till
repealed by Patents Act 1970.
it was
The basic philosophy of this Act
is that Patents are granted to encourage inventions and to secure
that the inventions are worked in India on a commercial scale
without undue delay.
A comparison of broad features of the Indian Patents Act, 1970
and the Paris Convention is given in the table on page 2.
-1-
TABLE
COMPARATIVE PROVISIONS IN INDIAN PATENTS ACT 1970 & PARIS CONVENTION
ON MAJOR ASPECTS OF PATENT SYSTEM
ASPECT
I. SCOPE
INDIAN PATENTS ACT-1970
PARIS CONVENTION
Law permits both product and process patents. Process
Patents are for food, medicine, drug, chemical substan
ces:
For others : Product Patents
System provides for product patents. Extends
to Industry and Commerce, Agriculture, extrac
tive industries, natural products.
Agriculture products and processes for treatment of
human beings or animals are not treated as inventions;
hence not patentable.
Covers patents of importation, improvement
and addition.
Atomic energy inventions are also not patentable.
II. TERM
5/7 years for food, medicine, drugs and chemical
substances.
14 years for others.
III. COMPULSORY
LICENSING-
Compulsory licences granted after 3 years if
reasonable requirement of public interests not satisfied
about availability; -reasonable prices.
IV. LICENCES
(a)
Government may apply after 3 years suo-moto
endorsement in public interest for any patent.
(b)
Licences of Right is deemed to have been endorsed
after 3 years in regard to the process patent for
food,medicine, drugs and chemical substances.
No period specified.
Member countries have different periods viz.
U.K.:20 years; Japan : 15 years;U.S.A.:20 years;
China : 15 years; Spain : 20 years
Compulsory licence
of failure to work
3 years of grant justifies inaction
can be applied on the ground
or insufficient working after
shall be refused if patentee
by legitimate reason.
No provisions for Licences of Right.
V. REVOCATION
Revocation order if first compulsory licence is not
worked in 2 years - orders issued within one year
thereafter.
Revocation proceedings instituted two years after
grant of compulsory licence. Proceedings may take
any length of time.
VI. RIGHT OF
PRIORITY
No
Right of priority extendable for 12 months in all
member countries from the date of registration
in any one country.
VII. UNFAIR
COMPETITION
Infringement proceedings are possible.
provision.
Member countries have to assure effective
protection against unfair competition Reason : contrary to honest practices.
NO.II
PATENT SYSTEM - HISTORICAL PERSPECTIVE IMPORTANT COUNTRIES
It is important to note that most countries of
the world have
adopted the product patent system only at a time when it suited
their national interest.
GERMANY
The German Patent Law of
field,
1877 enunciated that' in the Chemical
A view expressed by
only process patents were permitted.
one of the authors of the Patent system,
Dr.Van Ing,
indicates how
its needs:
clearly
the country formulated its patent system to suit
"This Patent Law gave an immense impetus and aid to the
development of German
henceforth chemical
products as such)
search
for
chemicals,
was
the
Industry. The fact that in Germany
process
only,
were patentable,
new methods
of
great
of
(and
chemical
not
left an open field for
manufacturing
advantage
to
known
chemical
the
industry."
It was only subsequently that the Patent Law was amended in 1961
when West Germany eventually adopted the product patent system
after having made sufficient economic progress.
JAPAN
It is a well-known fact that after near-total destruction in
World
War
II,
revolution.
beverages,
the
country
brought
Their
Patents
law provides
about
a
major
that
industrial
food
stuffs,
Pharmaceutical & Chemical products and certain other
substances are not patentable.
However,
manufacture
and
of
pharmaceutical
patentable.
-3-
processes
chemical
for
the
products
are
ITALY
According to the Royal Decree of 1940 on Italian Patent Law,
no
patent was granted for pharmaceutical processes or products.
Thus, any person was free to manufacture any drug discovered and
patented abroad by developing a different process of manufacture.
However,
because of
their membership of the Europen Common
Market, the Italian Patent System was modified in 1979 to provide
for grant of patents for new inventions or processes capable of
industrial application.
The patents granted for processes also
extend to the products obtained therefrom and pharmaceutical
products are part of this system.
USSR & CHINA
The USSR Patent Law of 1959 deals with patenting of discoveries,
inventions and rationalisation proposals.
Unless a product or
process is capable of being commercially exploited, it is not
patentable. Processes for the manufacture of chemical products
and medical composition are, however, patentable.
Similarly,
the Chinese Patent Law of 1984 also provides that no
patent right shall be granted for food, beverages, pharmaceutical
products and substances obtained by means of chemical processes.
However,
processes
in
used
producing
these
products
are
patentable under the Chinese Patent Law.
USSR & China are totally state-controlled economies and it is,
therefore,
unlikely that a violation of their Patent Law can be
pursued through any effective legal system.
Table-I gives a list of countries who are members of the Paris
Convention, where,
not patentable.
however,
food,
drugs and pharmaceuticals are
Table-ll gives the names of the countries who are members of the
Paris Convention but who only observe process patents for food,
drugs and chemical substances.
-4-
TABLE—I
COUNTRIES WHO ARE MEMBERS OF PARIS CONVENTION
WHERE HOWEVER FOOD AND PHARMACEUTICAL PRODUCTS
OR DRUGS ARE NOT PATENTABLE
1.
2.
3.
4.
5.
6.
7.
8.
ARGENTINA
AUSTRALIA
BRAZIL
GREECE
MEXICO
TURKEY
URUGUAY
YUGOSLAVIA
TABLE-II
COUNTRIES WHO ARE MEMBERS OF PARIS CONVENTION
WHERE HOWEVER ONLY PROCESS PATENT FOR FOOD,
PHARMACEUTICAL PRODUCT AND CHEMICAL PRODUCTS
ARE PATENTABLE.
1.
AUSTRIA
2.
CZECHOSLOVAKIA
3.
CHINA
4.
HUNGARY
5.
JAPAN
6.
NETHERLANDS
7.
NORWAY
8.
POLAND
9.
U.S.S.R.
-5-
No.Ill
REASONS BEING GIVEN BY PROPONENTS OF
INDIA JOINING THE PARIS CONVENTION
1.
II.
The two major reasons which are frequently advanced by those
who favour that India joins the Paris Convention are:
not
(a)
that enough technology transfer
place
(b)
that there is no incentive to Indian Scientists
because of insufficient protection to Intellectual
Property in India.
has
taken
TECHNOLOGY TRANSFER
As far as technology transfer is concerned the attached data
clearly indicates that there has been an increasing number
of foreign collaborations approved by Government in recent
years. While it is true that the number of patents
registered has gone
down yet technological advancement has
taken place both in the National Sector companies as well as
those who have set up joint ventures in India with
Multinational companies.
Ill.
INDIGENOUS RESEARCH & DEVELOPMENT
As far as encouragement of scientific research is concerned
one can only mention that in our country the emphasis has so
far rightly been on process development research and not on
fundamental or basic research. It is well known that it
takes 10 to 15 years of research and an expenditure of over
100 million dollars to discover an entirely new molecule
(pharmaceutical product) which can be patented. Furthermore,
the research budgets of some of the larger pharmaceutical
companies in the world are in the range of 300-400 million
dollars a year. As against this, the annual sales of the
larger pharmaceutical company in India are only in the
region of Rs.150 crores.
-6-
The- above
clearly
that
establishes
at
present
it
is
impossible either for any pharmaceutical company or for any
CSIR laboratory to seriously engage itself in fundamental
research since the funds required are staggering and totally
out of line
country,
IV.
with
feasible
is economically
what
in our
R&D PROGRESS IN INDIA
R&D expenditure in the fields of
agriculture,
health,
nuclear energy, space application and industrial research
have been noteworthy during the last 10 years and especially
during the Sixth
following data:
(i )
Plan
Period
can
as
be
seen
from
the
R&D Funds and Expenditure
Total
national
expenditure
on
R&D and
including Central,
scientific activities
Private Sectors:
related
State and
Year
1948-49
1950-51
1970-71
1980-81 1983-84
Rupees
1.1
4.68
139.64
760.52
1337.87
in Crores
(ii)
Plan Allocation for Science & Technology
Plan-wise,
the allocation for Science and Technology
has increased from Rs.20 Crores
(1951-56)
85) .
in the
First Plan
to Rs.3,400 crores in the Sixth Plan (1980-
(iii)Council of Scientific & Industrial Research
CSIR was established in 1942. The research expenditure
of the Council had risen from Rs.5.6 crores in 1958-59
to Rs.100 crores
in
1982-83.
There are
5000 highly
qualified scientists and technologists supported by
13,000 skilled scientists are working in an
infrastructure painstakingly built over the period.
-7-
Its network includes 33 laboratories, 2 cooperative
research associations and more than 100
extensions/field centres. It is now an apex body for
scientific and industrial research under the State
auspices.
(iv)
Research & Development in Industry
Some of the R&D units in Industry have been existence
for more than three decades. There are currently over
900 R&D establishments both in public and private
sector.
(v)
Science & Technology Personnel
The total number of Science and Technology personnel
at present is estimated at 30 lakhs. The number of
personnel actually engaged in R&D is, however, much
less. In 1982, about 2 lakh personnel were employed in
Science & Technology Institutions; 36% were engaged in
R&D activity and 31% auxiliary science and technology
activities.
(vi)
R&D Expenditure in the Pharmaceutical Industry
The R&D expenditure in the pharmaceutical Industry has
risen from Rs.10.50 crores in 1976-77 to Rs.48 Crores
in 1985-86.
Percentage-wise, this works out to 1.05%
and 2.03% respectively of sales turnover.
-8-
TABLE
FOREIGN COLLABORATIONS APPROVED IN INDIA
Year
Nos
1978
183
1980
389
1982
590
1984
752
1986
957
-9-
JOINING OF PARIS CONVENTION WOUT.n NECESSITATE
AMENDMENTS TO INDIAN PATENTS ACT - LEGAL OPINIONS
Those who are advocating that India join the Paris Convention
continue to emphasize to Government that India can join the Paris
Convention without having to change its Patent Act. In this
connection, the legal opinion given by eminent legal Jurists of
the country have clearly established that India would be forced
to amend their Patent Act for the following reasons:
Provisions of the Paris Convention
Article 25 of the Paris Convention reads as follows:
"(1) Any country party to this convention undertakes to
adopt, in accordance with its constitution, the
measures necessary to ensure the application of this
Convention.
(2) It is understood that, at the time a country deposits
its instrument of ratification or accession, it will be
in a position under its domestic law to give effect to
the provisions of this Convention."
Indian Constitutional Provisions
Article 51, relating to the Directive Principles of State Policy
undec the Constitution of India, reads as follows:
"The State shall endeavour to (c)
foster respect for international law and treaty
obligations in the dealings of organised people with
one another."
On the above provisions, opinions have,been expressed by:
1.
Mr.M.V.Hidyatullah,Retd.Chief Justice,Supreme Court.
2.
Mr.Y.V.Chandrachud,Retd.Chief Justice,Supreme Court.
3.
Mr.J.C.Shah,Former Justice, Supreme Court.
4.
Mr.V.Seturaman,Retd.Judge,Madras High Court
All of them are unanimous in their opinions that, if India joins
the Paris Convention, substantial changes in the Patents Act are
unavoidable.
-10-
No.V
ADVERSE IMPACT OF INDIA JOINING THE PARIS CONVENTION/
CHANGING OF PROCESS PATENT INTO PRODUCT PATENT.
If
India decides to join the Paris Convention,
eminent legal
luminaries have opined that it will become mandatory for India to
amend its current Patents Act to fall in line with the provisions
of the Paris Convention.
The adverse implications of India changing its Patents Act are as
follows:
1.
PRICES
(i)
During one of the hearings in the U.S.Senate in 1962
(prior to enactment of Patents Act,
Committee was constrained to comment:
1970), Kefauver
"Prices of certain drugs and antibiotics in India
were amongst the highest in the world and that in
drugs, India
nations".
was
one
of
the
h ighest-pr iced
This was the result of the product patent system that
existed
in
India
prior
to
1970
because
of
which
finished products were imported into the country at
exorbitant prices.
(ii) In contrast to the above, it is well known that prices
of pharmaceuticals in India are now amongst the lowest
in the world. A Statement giving comparative prices of
medicines in India and the U.K. is attached at Table I.
The data clearly shows that prices in U.K. are between
3-7
times
higher
than
prices
in
India,
with
the
changing of vital,provisions of our Patents Act, prices
would go up substantially.
2.
IMPORTS
If India is obliged to change its Patent Act, the first
implication will be that product patents will get registered
and this will increase the import bill for pharmaceutical
products very substantially. At present, almost 95% of
imports, valuing at Rs.300 crores relate to bulk drugs and
drug intermediates. In future large imports would begin to
take place in the form of patented finished products at
substantially high prices.
3.
EXPORTS
With cost-effective processes available for the manufacture
of basic chemicals, drugs and pesticides in India, export
activity has gained momentum in recent years. In these
industries, India is today at a take-off stage and it is
expected that export of these industries which is currently
around Rs.450 crores annually would grow at a rate of 40-50%
per year. These efforts will be substantially hampered
because indigenous manufacturing of patented products would
not be possible.
4.
INTRODUCTION OF NEW PROGS
It is relevant to note that where as in earlier years, "new
drugs" were introduced in India 10-15 years after their
introduction in world markets, after the enactment of the
Patents Act, 1970, Indian Companies started setting up
production facilities for these drugs by developing their
own processes within a period of 4-5 years of their
discovery abroad (See Table II). If the Patents Act is
changed we would have no control over introduction of new
drugs in the country and the manufacture of such drugs would
get delayed by <10 to 15 years again as it used to happen in
the past.
u
5.
RESEARCH ACTIVITY
In the last 10 years, there has been considerable
qualitative improvement in the field of process development
-12-
research, both in CSIR Laboratories as well as in the
private sector. This scientific and technological effort
will get a major setback if the Indian Patent Act has to be
changed and the benefits of newer drugs being available to
our people in a short period of time and at much lower
prices will be totally reversed. Table III gives the list of
important bulk drugs for which process technologies have
been developed in the country and where self-sufficiency has
been achieved - in several cases export surpluses have also
been created.
6.
PRODUCTION
Industrial development will get a setback because, as per
the provisions of the Paris Convention, the patent holder is
not obliged to manufacture the product in all the countries
where he takes out the patent. The endeavour of the
concerned companies abroad would be to manufacture their
patented products in a country of their choice and export
the same into India at controlled prices. Thus, indigenous
efforts in these new areas would be halted.
WNity
-13-
LIBRARY
•
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Xp'v
< DOCUMc-NfATfON
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UNfJ
y 1 /■’
TABLE I
COMPARATIVE PRICES OF MEDICINES IN INDIA & UK
SI .
No.
Products
1.
(1988)
Patent
Expiry
Date
Pack
ALLOPURINOL TAB
100 mg '
1986
10's
5.84
100's
303.81
+ 420
*
2.
LOPERAMIDE CAP
2 mg
1990
10's
5.00
30's
81.14
+ 441
*
3.
MEBENDAZOLE TAB
100 mg
1989
6's
4.88
6's
37.92
+ 677
4.
PIROXICAM CAPS
20 mg
1986
6's
7.20
30's
184.75
+ 413
*
5.
TIMOLOL MALEATE
25%
1988
5m 1
14.95
5 ml
125.92
+ 742
*
6.
NIFEDIPINE CAPS
10 mg
1986
100's
50.00
100's
296.34
-■ + 93
7.
RANITIDINE TABS
300 mg
N.A.
10's
36.00
30's
666.82
+ 503
*
8.
CLOTRIMOZOLE
CREAM
1989
15 gm
6.15
20 gm
44.24
+ 440
*
9.
CIMETIDINE TABS
200 mg
1992
10‘s
8.97
120's
432.72
+ 302
*
10.
GLIBENCLAMIDE TABS
5 mg
N.A.
100's
8.88
100's
234.35
+2539
11.
STANOZOLOL TABS
5 mg
N.A.
10's
14.48
561 s
540.90
+ 567
India
Current
Prices
(Rs.)
*Difference worked out on proportionate basis.
-14-
United Kinqdom
Pack
Current
Pri ces
(Rs)
Pri ce
diffe
rence
%
Table-11
PROCESS PATENT IN THE
PHARMACEUTICAL FIELD
HAS HELPED PRODUCTION OF NEW BULK DRUGS DISCOVERED ABROAD IN INDIAN MARKETS
WITHIN A MUCH SHORTER PERIOD THAN EARLIER:
DRUG
INTRODUCED IN
WORLD
INDIA
GAP-YEARS
SALBUTAMOL
(ANTI-ASTHMATIC)
1973
1977
4
MEBENDAZOLE
(ANTHELMINTIC)
1974
1978
4
RIFAMPICIN
(ANTI-TB)
1974
1980
6
NAPROXEN
(ANTI-RHEUMATIC)
1978
1982
4
BROMHEXIN
(ANTI-HYPERTENSIVE)
1976
1982
6
CAPTOPRIL
(ANTI-HYPERTENSIVE)
1981
1985
4
RANITIDINE
(ANTI-ULCER)
1981
1985
4
NORFLOXACIN
(ANTI-BACTERIAL)
1984
1988
4
00O00
-15-
EFFECT OF PROCESS PATENTS
III-3J8AT
BULK DRUGS MANUFACTURED BY NATIONAL SECTOR COMPANIES BASED ON
INDIGENOUSLY DEVELOPED
1.
KNOW-HOW
AMITRIPTYLINE
39.
KANAMYCIN
2.
AMOXYCILLIN
40.
MEBENDAZOLE
3.
AMPICILLIN
41.
METHOCARBAMOL
4.
BETAMATHASONE
42.
METAPROLOL
5.
Ca.SENNOSIDE
43.
METRONIDAZOLE
6.
CARBAMAZEPINE
44.
METHYL DOPA
7.
CHLORAMPHENICOL
45.
NALIDIXIC ACID
8.
CHLORDIAZEPOXIDE
46.
NITRAZEPAM
9.
CHLORPROPAMIDE
47.
NITROFURANTOIN
10.
CHLOROQUIN PHOSPHATE
48.
NORETHISTERONE
11.
CIMETIDINE
49.
NORFLOXACIN
12.
CLOFAZIMINE
50.
PIRACETAM
13.
CLOFIBRATE
51.
PROPRANOLOL
14.
CLONIDINE
52.
PVP-IODINE
15.
CLOXACILLIN
53.
PYRAZINAMIDE
16.
CYPROHEPTADINE
54.
QUINIDINE
17.
DEXAMETHASONE
55.
RANITIDINE
18.
DEXTROPROPOXYPHENE
56.
SALBUTAMOL
19.
DIAZEPAM
57.
SILVER SULPHADIAZINE
20.
DILOXANIDE FUROATE
58.
SULPHAMETHOXAZOLE
21.
DIPHENYL HYDANTOIN
59.
SULPHAMOZOLE
22.
DOXYCYCLINE
60.
STERBUTALINE
23.
EMETINE
61.
THEOPHYLLINE
24.
ERYTHROMYCIN
62.
TINIDAZOLE
25.
ETHAMBUTOL
63.
TRIMETHOPRIM
26.
ETHINYL ESTRADIOL
64.
TRIOXSALEN
27.
FTORAFUR
65.
VINBLASTINE
28.
FRUSEMIDE
66.
VINCRISTINE
29.
GENTAMYCIN
67.
VITAMINE B-12/0THER VITAMINS
30.
GLYBENCLAMIDE
68.
DANAZOL
31.
GUAIPHENESIN
69.
PROGESTERONE
32.
HEPARIN
70.
TESTOSTERONE
33.
HYDROCHLOROTHIAZIDE
71.
HYDROXYPROGESTERONE
34.
HYDROXYZINE
72.
QUININE
35.
IBUPROFEN
73.
CISPLATIN
36.
INDOMETHACIN
74.
ASPIRIN
37.
ISOPROPYLANTIPYRINE
75.
NIFEDIPINE
38.
LORAZEPAM
76.
PYRANTEL PAMOATE
77.
PARACETAMOL
Development of alternative processes possible because of the existing Patent
Laws.
-16-
No. VI
THE ROLE OF THE PATENT SYSTEM IN THE TRANSFER OF TECHNOLOGY TO
DEVELOPING COUNTRIES
A U. N. Report
Page 53
-
1975
Fields of exclusion frxa patentability in selected countries
Field of exclusion
Countries
1.
No specific exclusions
Australia,3 Federal Republic of Germany,
Ireland,a Netherlands, New Zealanda,
United Kingdom,3 Cuba, Jordan, Liberia,
Malawi/, Philippines, Sri Lanka,Sudan,
Zambia3
2.
Food products
Austria, Canada, Japan, Spain,Switzerland
Brazil/, Chile, Colombia.Egypt, India,
Korea, Kuwait, Tunisia, Venezuela.Yugoslavia ;
Czechoslovakia0, German Democratic Republic
Hungary, Poland,0 Romania,0, USSR°
3.
Plant varieties or kinds of
animals,or essential processes
for obtaining plants or animal s^
Denmark, Finland, France, Norway, Sweden,
United States of America; Poland, Romania,
USSR, Algeria, Colombia,Israel, Nigeria
4.
Pharmaceutical
Austria, Canada, Italy,'5 Japan,'5 Switzerland,
Products
Turkey;Czechosl ovakia,° German Democratic
Republic,Hungary,Poland,0 Romania,0 USSR;0
Argentina, Brazil / , Chile, Colombia,
Egypt, Ghana, India, Iran, Iraq, Korea/
Kuwait, Lebanon, Morocco, OAMPI countries,
Pakistan, Syrian Arab Republic, Tunisia,
Urguay, Venezuela, Yugoslavia
5.
Chemical
6.
Nuclear material s,atomic energy,
atomic weapons
7.
Programmes for computer machines6
France, Poland
8.
Inventions related to State
monopolies
Austria
9.
Items deemed contrary to public or
social interest or economic
development
Ghana, Iraq, Peru
a
"Mere mixtures of known ingredients..." in the case of food or medicines are not
patentable.
Processes are also excluded.
c Inventors' certificates are granted.
b
substances,
Japan.Switzerla nd,USSR;Brazil,Chi 1e,China,
India, Korea, Mexico
Japan,United States of America,Czechoslovakia
Poland,Romania,Brazil .India
d
In many of these countries plant varieties,etc are protected by laws other than
the patent laws.
e
The laws of many other countries exclude accounting..etc..systems or programmes
generally without specific reference to computers.
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I - Pitfalls Of The Paris Convention
By SURENDRA J. PATEL
NDIA’S position about not joining
the Paris convention has remained
well-settled since independence. Our
three successive Pome Ministers.
Pandit Nehru. Shastriji and Mrs
Indira Gandhi, had resisted all press
ures. particularly from foreign trans
national corporations and their
domestic supporters, to join the
convention. Instead, they had
directed our policy towards revising
both the national patent and
trademark laws and the Paris con
vention. in order to safeguard India's
national interests of rapid develop
ment.
Our longstanding position of not
joining the Pans convention, unless
it is basically revised, is now being
reconsidered. A committee of five
men. under the chairmanship of Dr
S. Ganguly, chairman of the IPCL,
has been established to advise the
government whether tojoin or not to
join the Paris convention. Il is im
portant, therefore, that the basic
issues which had guided India for all
these long years against joining the
convention, are examined once
again so that their full awareness
would show why there is no case for
a Hamlet-like hesitation on the sub
ject.
A public discussion of this esoteric
subject is hampered by the general
ignorance of what the patent and the
trademark system and its guardian.
the Pans convention, arc all about
A patent (and a trademark) is an
exclusive grant by government to an
individual or a legal person to re
strain all others from making, im
porting. offering for sale, selling or
using in production-the products and
processes covered by the grant. It is
thus the grant of a monopoly to
prevent others from imitating,
adapting, improving and producing
these items. Quite clearly, the con
flict between private gams and pub
lic interests or national needs is at
the very heart of the system.
The major industrial countries
have always been the strongest ad
vocates of the system. The imperial
powers — Britain. France. Belgium.
the Netherlands, Italy. Germany —
imposed it in their colonics upon
conquest. And lhe United States did
the same in lhe Latin American
countries under its domination. In
dian patent law was introduced as
early as in 1859. just a few months
after the suppression of India's first
rebellion against the British. No
wonder, it was among the very first
laws given by the crown. It reserved
at one stroke and for all time Indian
markets for the British exporters. A
similar situation was created in all
other colonics and semi-colonics.
I
3.5m. Patents
There arc some 3.5 million patents
in lhe world. Of these, the third
world'countries have only 200.000.
The nationals of the third world hold
only 30.000 of these, that is. less than
even one per cent of the world total
The other 170.000 — or 85 per cent
of the total — are held mostly by the
powerful transnational corporations
of the United States. United King
dom. Germany. France. Switzerland
and Japan. To add injury to insult.
not even five per cent of these
patents arc used in production in the
third world. In India too, foreigners
held 80 to 90 per cent of all patents.
few of which were ever used in
production.
The system thus reserves lhe third
world markets for lhe foreigners. It
pcrpeluaies perverse preferences, or
reverse reservation. It is a system
mainly for the benefit of foreigners.
but legalised, operated and even
subsidised by the nationals — a
system guaranteeing private foreign
gains at public cost to the third world
countries. In the comity of nations.
the third world accounts for 75 per
cent of population. 20 per cent of
income. 30 per cent of trade, and
about 40 per cenl of enrolment in
higher education But its share in the
world patent system is only I per
cent. The present system, designed to
protect the foreign interests, has thus
remained the most unequal and
most unjust of all lhe relationships
between the developed and the de
veloping countries.
The Pans convention serves as the
guardian of the patent system. It.
therefore, legitimises all the ine
quities of ihe patent system sum
marised above. The convention was
established during lhe 19th century
on the initiative of the United States.
It was signed in Paris in 1893. at the
lime the Paris world fair of industrial
products of “all" nations was under
way. Many governments, mostly
from the less industrialised countries
in Europe, had serious misgivings
about such a convention which they
fell, would serve the interests of the
patent holders in the then “de
veloped countries" (USA. Switzer
land. German). France and the UK)
and thereby adversely affect their
national interests and industrial de
velopment.
1 his opposition was skilfully
handled. 7he USA brought with n to
Pans, aboard the same steamship, its
protectorates—Brazil. Ecuador. El
Salvador and Guatemala, and
France brought in Tunisia—io
create a majority through block
voting.
THE TIMES OF INDIA. BOMBAY
Since then, the convention has
remained for long, "a rich-man’s
club”. It was revised six limes—in
1900. 1911. 1925. 1934. 1958 and
1967. But each revision only further
strengthened lhe rights of lhe
foreigners.
Basic Asymmetry
The basic asymmeiry between the
interests of the foreign patent holders
and the nationals of the third world
countries, runs all the way through
lhe enure structure of lhe conven
tion. Its first article is devoted to the
definition of the coverage of indus
trial property. Its very next article
guarantees equal treatment
to
patentees from all countries—both
lhe rich and strong, and the poor and
weak We have come to know well.
how such “spurious equality" be
tween lhe very strong and lhe very
weak.
actually
perpetuates
preferences for lhe powerful foreign
multi-national enterprises. The Pans
convention furnishes, yet one more
classic example of this, along with
nuclear non-proliferation treaty and
such "international legislation".
The convention then spells out in
detail how the signatory countries'
have to pass new laws, or adjust the
old ones they already have to con
form to the basic thrust of the
convention—to protect only the
rights of the patentees while being
silent on his obligations. This is
clearly embodied in the watereddown historic compromise con
tained in article 5. A century-long
legal battles have not produced even
a few favourable judgments safe
guarding public interest
The convention has a unique sys
tem implicit in the provision on its
revision—only by complete una
nimity. The veto system was thus
nol invented jusi for the United
Nations security council. The Paris
convention had siancd ii long before
finally
The process of withdrawing from
the convention is both iricky and a
long one. Il would involve at least
five to six years.
These are the reasons why the
summit conferences of the nonaligned movement and the group of
77 have forcefully called fora basic
revision of the Pans convention.
(To be concluded)
The author, former director of the
technology division of UNCTAD
(Geneva) is currently Sr. adviser.
World Institute of Development
Economics Research (L'XL). Hel
sinki
WEDNESDAY, APRIL 8, 1987
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II — Pitfalls Of The Paris Convention
HE post-war world saw the col
lapse of imperialism and the
independence of lhe colonics The
newly independent countries began
io perceive the perversity of the
patent system, the inequity of the
Pans convention.
The third world countries called
for a basic revision of both. As
director of UNCTAD’s technology
division. I was closely associated
with this process India was in the
forefront of this crusade, acting as
the natural spokesman of the de
veloping countries, or lhe Group of
77. as it came to be called in
UNCTAD.
The skill with which Indian rep
resentatives
marshalled
the
evidence, won the respect and ad
miration of the Group of 77.
As charity begins at home, India
was. therefore, among the first coun
tries to revise in 1970 its Bntishimposed patent law. The new law
was a long step forward
Above all. it changed the very
objective of the system — denying
monopoly to foreigners for the im
ports of the patented articles and
centring lhe system upon encourag
ing national inventiveness and
securing working of the patents in
the production system.
It contained several departures. It
excluded critical sectors of national
interest from patentability — agri
culture, processes of treating human
beings and animals, inventions relat
ing to atomic energy (ahcady made
unpatentable by section 20 of lhe
Atomic Energy Act of 1962).
It prohibited the grant of patents
to products for food, pharmaceutical
and chemicals and limited it to only
processes.
The duration of the patent grant
was cut dow n to only 5 years in these
items of critical national interest. Il
introduced automatic endorsement
for ’‘licences of right” so as to use the
patents in production in order to
promote national development
T
Patent Act
India's 1970 patent Act became a
model for other third world coun
tries. .They too revised their patent
laws, in consequence, the third
world pressures for the revision of
the Pans convention mounted in
UNCTAD
India and Brazil, supported by the
rest of the Group of 77 and the
socialist counincs, finally succeeded
in mid-70s to initiate the formal
process of the revision of the Pans
convention — a revision in a direc
tion completely different from that
in the earlier six revisions of the
convention.
1 his time the pendulum was to be
pushed in lhe other direction —
safeguarding the interests of rapid
industnal development of the third
world But even after eight years of
negofrations, the revision process is
still stalled by the fierce opposition
of the western industrialised coun
incs
Dunng discussions on the re
vision of the Pans convention in
various forums of lhe World In
tellectual Property Orgamsalion
(WIPO). Geneva, the group of de
veloping counincs have maintained
that any industnal property system
must fulfil the developmental needs
of the non-industnahsed countries
Today, India has about 1000 in
house R and D units in public and
pnvate sector industrial companies,
and major investments in publicfunded R and D through lhe Council
of Scientific and Industnal Research,
Indian Council of Agncullural Re
search, department of atomic energy.
department of space, department of
defence research and institutes of
higher tcchnical/scicntific educa
tion.
Trump Card
India is, therefore, at a stage of
making a competitive entry into
international markets on technology.
It is at this stage that lhe highly
industrialised countries through the
Paris convention can do maximum
damage by blunting the edge of
India’s
developing
innovative
capability.
This is the background for India’s
refusal to join lhe Paris convention.
India’s remaining outside the con
vention has served as the strongest
card in the negotiations to revise the
Pans convention. It has enabled it to
adopt a new patent law safeguarding
its national intcrcsis.
Thus there is no change in the
fundamental reasons why India has
all along refused to join the Paris
convention.
In fact, lhe needs for India’s social.
economic and industrial develop
ment in the present phase, make lhe
arguments against joint the conven
tion still more valid
The appointment of the Ganguly
committee has. therefore, under
standably caused widespread con
cern that this position may now be
compromised.
Several recent developments have
in fact reinforced lhe grounds for
India’s refusal to join the conven
tion Joining it wi(l compromise
some of the most important
provisions of our 1970 patent law.
That will undermine the develop
ment of national industries, particu
larly in the pharmaceutical field
According to Dr S. Vcdaraman. for
mer controller general of patents.
sections 5. 10(5), 47. 66. S7, 88. 9l.
93. 99 and 102 of the Patent Act
would require modification if India
joined lhe convention.
According
to
justice
V.
Scthuraman of the Madras high
court, section 23(1) of the trade and
merchandise Marks Act and section
28 of FERA arc inconsistent with the
Paris convention Similaily section
20 of the Atomic Energy Act of 1962
will face modification
There is a rormiaablc legal con
sensus among four former justices of
the supreme court, who have come
out against joining the Pans conven
tion. They arc justices J. C. Shah. Y.
V. Chandrachud. M. Hidayatullah
and V. R. Krishna Iyer.
As is widely known, these four
justices have in the past differed on
several issues. But they are unani
mous that joining lhe convention
will require ’’abrogation” of several
provisions in our patent law and
“will seriously harm the economy of
the country.”
Drug Element
Justice Shah considers that in his
opinion, joining lhe convention ”is
legally impermissible because it is in
violation of directive principles of
stale policy enshrined in article 39”
of the constitution. It will also lead
to "the infringement of fundamental
rights”
protected by statute laws.
The Indian drug manufacturers ’
association has expressed its strong
opposition to joining lhe conven
tion. It considers that such an Act
would undermine lhe progress we
have made in developing rapidly our
national drug industry.
. Since 1976. drug production in the
national sector has increased 3.4
times, with that by multi-nationals
more or less unchanged. The FICCI
had established in early 1986. a
special sub-committee on this ques
tion. w hich came out against joining
the Pans convention. FICCI’s views
were communicated to lhe govern
ment on May 7, 1986.
Our foremost scientists working
on drug research and manufacture
arc against our joining the Pans
convention. These include Dr Nitya
Anand, former director of lhe Cen
tral drug research institute
They have warned that joining lhe
Pans convention would cripple R
and D and technology development
not only in the traditional drug
industry , but also in lhe new area of
bio-technology,
which
holds
enormous promise of creating a
whole new drug and vaccine indus>DIn summary ihen. economists of
all shades, supreme court justices.
outstanding scientists. FICCI and
1DMA have added their strong
voices to reinforce India’s de
termined stand not to join the Pans
conv enlion.
That
stand
was
forcefully
articulated by the late Prime Minis
ter. Mrs Indira Gandhi, in an address
delivered at the 34th session of the
world health assembly on May 6.
I9S1 in Geneva. There she stated
"My idea of a better ordered world
is one in which medical discoveries
would be free of patents and there
will be no profiteering from life or
dcaih.”
(Concluded)
THURSDAY. APRIL 9. 1987. THE TIMES OF INDIA. BOMBAY
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