INDIAN PATENT LAWS VIS - A - VIS PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY
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- Title
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INDIAN PATENT LAWS
VIS - A - VIS
PARIS CONVENTION FOR THE
PROTECTION OF INDUSTRIAL PROPERTY - extracted text
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INDIAN
PATENT
LAWS
VIS - A - VIS
PARIS CONVENTION FOR THE
PROTECTION OF INDUSTRIAL PROPERTY
INTRODUCTORY
PAPERS
CONTENTS
I.
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/CHANG ING 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
NO. I
COMMUNIT” uc"
ACT VIS-A-VIS PARIS
4-7jJ^St7Mgrk^oawD Awp SALIENT FEATURES
JON
The need of a Patent system in industrialised countries is quite
different
from
of
that
developing countries.
developed countries have traditionally been strong
the
Patent
Whereas
the
advocates
of
the developing countries have been stressing
System,
that the system should help in their
of
development
indigenous
manufacturing facilities.
It
is
to
interesting
note
the
world
U.S.A.,U.K.,Germany,
France,
registered
in
of
the
total
owned
by
MNCs
85%
that
are
Switzerland and Japan.
interesting is that not more than 5%
of
these
local production in the third world.
for
that
it
is
the business policy of
patents
patents
the
of
Even more
used
are
This clearly indicates
the developed countries
to
manufacture their patented products at locations of their choice
and market them worldwide.
PARIS CONVENTION
In order
to protect
their
advanced
countries
signed
Convention
patented
a
Treaty
the protection of
for
industrially
products,
in
1883
called
Industrial
the
Paris
Property.
The
original Convention of 1883 has be=n revised only six times.
The
Convention had 97 members as on 1.1.1986. The countries to which
the
Paris
applies
Convention
constitute
protection of industrial property.
a
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
was
enacted.
In
was
enunciated
and
1911
a
this
repealed by Patents Act
rule,
the
first Patent Act
comprehensive Patents and Designed Act
Act
1970.
remained operative
till
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,
and the Paris Convention is given in the table on page 2.
-1-
1970
TABLE
COMPARATIVE PROVISIONS IN INDIAN PATENTS ACT 1970 & PARIS CONVENTION
ON MAJOR ASPECTS OF PATENT SYSTEM
INDIAN PATENTS ACT-1970
ASPECT
I. SCOPE
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
OF RIGHT
(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 can be applied on the ground
of failure to work or insufficient working after
3 years of grant - shall be refused if patentee
justifies inaction 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 provision.
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.
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
that
important to note
adopted
product
the
their national
countries
most
system only
patent
a
at
world
of
the
time
when
it
have
suited
interest.
GERMANY
The German Patent Law of
field,
only process patents
Dr.Van
Ing,
indicates
one
of
the
enunciated
1877
of
country
formulated
Patent
Law gave
an
Chemical
system,
Patent
the
the
A view expressed by
were permitted.
authors
the
how
that' in
clearly
its patent system to suit
its needs;
"This
development
of
chemical
henceforth
as
products
German
such)
process
were
search
for
new
chemicals,
was
of
the
immense
great
and
aid
fact
that
in Germany
(and
not
chemical
an
open
field
only,
patentable,
methods
of
to
impetus
The
Industry.
left
manufacturing
advantage
to
the
for
known
chemical
the
industry."
the Patent Law was amended
It was only subsequently that
when
West
Germany
eventually
adopted
in
the product patent
1961
system
after having made sufficient economic progress.
JAPAN
It
is
World
a
well-known
War
that
country
brought
Their
Patents
law
beverages,
Pharmaceutical
substances
are
manufacture
after
the
II,
revolution.
fact
of
not
near-total
about
provides
a
destruction
major
that
in
industrial
food
stuffs,
& Chemical products and certain other
patentable.
pharmaceutical
patentable.
-3-
However,
and
processes
chemical
for
the
products
are
ITALY
patent
Thus,
Decree of
to the Royal
According
granted
was
for
1940
Italian
on
Patent
processes
pharmaceutical
free to manufacture any drug
any person was
or
Law,
no
products.
discovered
and
patented abroad by developing a different process of manufacture.
However,
Market,
for
because
grant
of
industrial
extend
their
of
membership
the
of
Common
Europen
the Italian Patent System was modified in 1979 to provide
for
patents
application.
new inventions
or
processes
the products obtained therefrom and
to
capable
of
patents granted for processes also
The
pharmaceutical
products are part of this system.
USSR & CHINA
The
1959 deals with patenting of discoveries,
USSR Patent Law of
inventions and
process
is
patentable.
rationalisation
capable
of
Processes
being
for
the manufacture
and medical composition are,
Similarly,
the
Chinese
proposals.
Unless
of
Patent Law of
used
or
is not
it
products
chemical
1984 also provides
products ■and substances obtained by means of
processes
product
however, patentable.
patent right shall be granted for food, beverages,
However,
a
commercially exploited,
in
producing
no
pharmaceutical
processes.
chemical
these
that
are
products
patentable under the Chinese Patent Law.
USSR & China are totally state-controlled economies
therefore,
that
unlikely
a violation of
their
and
Patent
it
Law can
is,
be
pursued through any effective legal system.
Table-I gives a
Convention,
list of countries who
are
members
of
the
Paris
pharmaceuticals
are
Table-n gives the names of the countries who are members of
the
where,
however,
food,
drugs
and
not patentable.
Paris
Convention
but
who
only
drugs and chemical substances.
-4-
observe
process patents
for
food,
TABLE—I
COUNTRIES WHO ARE MEMBERS OF PARIS CONVENTION
WHERE HOWEVER FOOD AND PHARMACEUTICAL PRODUCTS
OR DRUGS ARE NOT PATENTABLE
1.
ARGENTINA
2.
AUSTRALIA
3.
BRAZIL
4.
GREECE
5.
MEXICO
6.
TURKEY
7.
URUGUAY
8.
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.
The two major reasons which are frequently advanced by those
who favour that India joins the Paris Convention are:
(a)
that
technology
enough
has
transfer
not
taken
place
(b)
that
there
is
no
to
incentive
Indian Scientists
because of insufficient protection to Intellectual
Property in India.
II .
TECHNOLOGY TRANSFER
As far as technology transfer is concerned the attached data
clearly indicates that there has been an
of
increasing
foreign collaborations approved by Government
years.
While
registered has
it
true
is
that
number
the
number
in
of
recent
patents
down yet technological advancement has
gone
taken place both in the National Sector companies as well as
those
who
up
set
have
ventures
joint
in
India
with
Multinational companies.
III.
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
It
is
known that
well
fundamental
or
takes 10 to
15 years of research and an expenditure of over
100
million
research.
basic
dollars
to
(pharmaceutical product)
discover
in
the world
dollars a year.
larger
As
the
larger
are in the range of
against
pharmaceutical
entirely new molecule
an
which can be patented.
the research budgets of some of
companies
this,
company
region of Rs.150 crores.
-6-
the
in
it
Furthermore,
pharmaceutical
300-400
million
annual
sales
of
the
are
only
in
the
India
The. above
clearly
that
establishes
at
present
it
is
impossible either for any pharmaceutical company or for any
CSIR laboratory to seriously
engage
itself
fundamental
in
research since the funds required are staggering and totally
out
of
line
with
what
is
feasible
economically
in
our
country.
IV.
R&D PROGRESS IN INDIA
R&D expenditure
in the
nuclear
space
energy,
fields
of
health,
agriculture,
application and industrial research
have been noteworthy during the last 10 years and especially
during
the Sixth
Plan
Period
can
as
be
seen
from
the
following data:
(i)
R&D Funds and Expenditure
Total
national
expenditure
scientific activities
on
R&D
and
including Central,
related
State and
Private Sectors:
Year
1948-49
1950-51
1970-71
1980-81 1983-84
1.1
4.68
139.64
760.52
Rupees
1337.87
in Crores
(ii)
Plan Allocation for Science & Technology
Plan-wise,
has
the
allocation for Science and Technology
increased from Rs.20 Crores
(1951-56)
in
Plan
First
the
to Rs.3,400 crores in the Sixth Plan
(1980-
85) .
(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.
qualified scientists and
13,000
skilled
There
are
5000
highly
technologists supported by
scientists
are
working
in
an
infrastructure painstakingly built over the period.
-7-
Its network
includes
research
associations
33
laboratories,
extensions/field
centres.
scientific and
industrial
It
and
now
is
2
cooperative
than
more
an
apex
100
for
body
under
the State
the R&D units in Industry have been
existence
research
auspices.
(iv)
Research & Development in Industry
Some of
three decades.
for
more
than
900
R&D
establishments
There are currently over
in
both
public
and
private
sector.
(v)
Science & Technology Personnel
The
total
number
of Science and Technology personnel
at present
is
personnel
actually
less.
estimated
30
at
engaged
lakhs.
The
in R&D is,
number
however,
of
much
In 1982, about 2 lakh personnel were employed in
Science & Technology Institutions;
R&D activity and
36% were engaged in
31% auxiliary science and
technology
activities.
(vi)
R&D Expenditure in the Pharmaceutical Industry
The R&D expenditure in the Pharmaceutical Industry has
risen
in
from Rs.10.50 crores
1985-86.
in 1976-77 to Rs.48 Crores
Percentage-wise,
this
works out
and 2.03% respectively of sales turnover.
-8-
to
1.05%
TABLE
FOREIGN COLLABORATIONS APPROVED IN INDIA
Year
Nos.
1978
183
1980
389
1982
590
1984
752
1986
957
-9-
JOINING OF PARIS CONVENTION WOULD NECESSITATE
AMENDMENTS TO INDIAN PATENTS ACT - LEGAL OPINIONS
Those who are advocating
India
that
join
Paris
the
Convention
continue to emphasize to Government that India can join the Paris
change
Convention
without
connection,
the legal opinion given
the
have
country
having
to
by
established
clearly
its
eminent
that
In
Act.
Patent
this
Jurists
legal
of
forced
India would be
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
adopt,
to
convention
this
with
its
measures necessary to ensure
the
in
accordance
undertakes
to
constitution,
the
of
this
application
Convention.
(2)
It
is
understood
that,
at
the
time
a country deposits
it will be
its instrument of ratification or accession,
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
under the Constitution of India,
reads as follows:
"The State shall endeavour to -
(c)
foster
respect
obligations
in
for
the
international
dealings
law
and
treaty
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
the
them are unanimous
Paris Convention,
in their opinions that,
if
India
joins
substantial changes in the Patents Act are
unavoidable.
-10-
ADVERSE IMPACT OF INDIA JOINING THE PARIS CONVENTION/
CHANGING OF PROCESS PATENT INTO PRODUCT PATENT.
If
India
join
to
decides
Paris
the
Convention,
legal
eminent
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
(prior
to
in
the hearings
of
enactment
U.S.Senate
the
Patents
Act,
1970),
in
1962
Kefauver
Committee was constrained to comment:
"Prices of certain
were
amongst
drugs,
the
highest
was
India
India
in
in the world and that
of
one
antibiotics
and
drugs
the
in
h i g h e s t-p r i c e d
nations".
This
was
the
result
India
existed
in
finished
products
of
the
to
prior
were
product patent
1970
because
into
imported
system that
of
which
country at
the
exorbitant prices.
(ii)
In contrast
of
to the above,
pharmaceuticals
in the world.
in
it
is well
A Statement
data clearly
3-7
times
giving comparative
prices
than
prices
prices
in
in U.K.
India.
are between
With
changing of vital provisions of our Patents Act,
would go up substantially.
of
is attached at Table I.
shows that prices
higher
that
India are now amongst the lowest
medicines in India and the U.K.
The
known
the
prices
2.
IMPORTS
If
India
is
obliged
its Patent Act,
to change
first
the
implication will be that product patents will get registered
and this will increase the import bill
products
very
imports,
valuing at Rs.300 crores
drug
substantially.
In
intermediates.
take place in the
At
form of
present,
imports would
patented
95%
of
drugs
and
almost
to bulk
relate
large
future
pharmaceutical
for
finished
begin
to
products at
substantially high prices.
3.
EXPORTS
With cost-effective processes available for
of basic chemicals,
activity
gained
has
India
industries,
expected
drugs and
is
pesticides
India,
recent
years.
In
take-off
stage
and
momentum
in
today
a
at
the manufacture
in
export
these
it
is
these industries which is currently
that export of
around Rs.450 crores annually would grow at a rate of 40-50%
per
year.
These
efforts
be
will
substantially
hampered
indigenous manufacturing of patented products would
because
not be possible.
4.
INTRODUCTION OF NEW PROGS
It is relevant to note that where as in earlier years,
drugs"
introduced
were
in
India
introduction in world markets,
Patents
Act,
1970,
Indian
own
processes
within
a
drugs
period
discovery
abroad
(See
Table
changed
would
have
no
we
the
Companies
production facilities for these
II).
years after
10-15
after
of
If
"new
their
enactment of
the
setting
up
started
by developing
their
years
their
4-5
the
of
Patents
Act
is
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.
5.
RESEARCH ACTIVITY
In
the
last
10
years,
there
qualitative improvement in the
-12-
has
been
considerable
field of process development
both
research,
private sector.
in
This
CSIR
as well
Laboratories
scientific
and
as
technological
in
the
effort
will get a major setback
if the Indian Patent Act has to be
changed
of
our
and
the benefits
people
a
in
short
newer
drugs
being
of
time
and
period
available
at
to
lower
much
prices will be totally reversed. Table III gives the list of
important bulk drugs
for
which
technologies
process
have
been developed in the country and where self-sufficiency has
been achieved -
in several cases export surpluses have a.lso
been created.
6.
PRODUCTION
Industrial development will get
a
setback
the provisions of the Paris Convention,
not
obliged
where
he
concerned
out
companies
the
patent.
abroad would
patented products in a country
the
same
the patent holder
into
India
at
of
controlled
The
be
endeavour
to
peris
their
of
the
manufacture their
choice
prices.
efforts in these new areas would be halted.
-13-
as
in all the countries
to manufacture the product
takes
because,
Thus,
and
export
indigenous
TABLE I
COMPARATIVE PRICES OF MEDICINES IN INDIA & UK
(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
56' s
540.90
+ 567
SI.
No.
Products
1.
India
Current
Prices
(Rs.)
*Difference worked out on proportionate basis.
-14-
United Kingdom
Pack
Cur rent
Prices
(Rs)
Price
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
WOW
TNW
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
BROMHEX IN
(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
KNOW-HOW
1.
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
CHLOROQUIN PHOSPHATE
48.
NORETHISTERONE
10.
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
PARACETAMOL
77.
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 froa 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,3, 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, USSR0
3.
Plant varieties or kinds of
animals,or essential processes
for obtaining plants or animals^
Denmark, Finland, France, Norway, Sweden,
United States of America; Poland, Romania,
USSR, Algeria, Colombia,Israel, Nigeria
4.
Pharmaceutical Products
Austria, Canada, Italy,b Japan,b Switzerland,
Turkey;Czechoslovakia,c German Democratic
Republic,Hungary,Poland,0 Romania,0 USSR;0
Argentina, Brazil,® , Chile, Colombia,
Egypt, Ghana, India, Iran, Iraq, Korea,b
Kuwait, Lebanon, Morocco, OAMPI countries,
Pakistan, Syrian Arab Republic, Tunisia,
Urguay, Venezuela, Yugoslavia
5.
Chemical substances,
Japan,Switzerland,USSR;Brazil.Chile,China,
India, Korea, Mexico
6.
Nuclear material s,atomic energy,
atomic weapons
Programmes for computer machines6
Japan,Uni ted States of America,Czechoslovakia,
Poland,Romania,Brazil .India
8.
Inventions related to State
monopol ies
Austria
9.
Items deemed contrary to public or
social interest or economic
devel opment
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.
7.
b
France, Poland
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.
-17-
I - Pitfalls Of The Paris Convention
By SURENDRA J. PATEL
NDIA'S position about not joining
Paris
since
three successive Prime 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 Paris 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 lhe 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.
lhe Paris convention, arc ail about.
A patent (and a trademark) is an
exclusive grant by government to an
individual or a legal person io re
strain all others from making, im
porting. offering for sale, selling or
using in production ahe products and
processes covered by the grant. Il 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 gains and pub
lic interests or national needs is at
lhe 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 the 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 lime Indian
markets for the British exporters. A
similar situation was created in all
other colonics and scmi-colonics.
the
convention has remained
Iwell-settled
independence. Our
3.5m. Patents
There arc some 3.5 million patents
in lhe world. Of these, lhe third
world’countries have only 200.000.
The nationals of lhe third world hold
only 30.000 of these, that is. less than
even one per cent of lhe world total
The other 170,000 — or 85 per cent
of lhe total — are held mostly by the
powerful transnational corporations
of the United States. United King
dom. Germany. France. Sw-ilzerland
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 the foreigners. It
perpetuates perverse preferences, or
reverse reservation. Il is a system
mainly for the benefit of foreigners.
but legalised, operated and even
subsidised by the nationals — a
system guaranteeing private foreign
gains al 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 cent of enrolment in
higher education. But its share in the
world patent system is only 1 per
cent. The present system, designed to
protect the foreign interests, has thus
remained the most unequal and
most unjust of all the relationships
between the developed and the de
veloping countries.
The Pans convention serves as the
guardian of the patent system. It.
therefore, legitimises all lhe ine
quities of ihe patent system sum
marised above. The convention was
established during the 19th century
on the initiative of the United States.
It was signed in Pans in 1893. at the
time the Paris world fair of industrial
products of "all" nations was under
way. Many governments, mostly
Irom the less industrialised countries
in Europe, had serious misgivings
about such a convention which they
felt, would serve the interests of the
patent holders m the then "de
veloped countries" (USA. Switzer
land. Germany. France and the UK)
and thereby adversely affect their
national interests and industrial de
velopment.
This opposition was skilfully
handled. The USA brought with it to
Pans, aboard the same steamship, ns
protectorates—Brazil. Ecuador. El
Salvador and Guatemala, and
France brought in Tunisia—to
create a majority through block
voting.
THE TIMES OF INDIA, BOMBAY
Since then, the convention has
remained for long, "a rich-man’s
club". Il was revised six limes—in
1900. 1911. 1925. 1934. 1958 and
1967. But each revision only further
strengthened the rights of the
foreigners.
Basic Asymmetry
The basic asymmetry between the
interests of the foreign patent holders
and the nationals of lhe third world
countries, runs all lhe way through
the 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
the 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 lhe
convention—to protect only the
rights of the patentees while being
silent on his obligations. This is
clearly embodied in the watereddown histone compromise con
tained in article 5 A century-long
legal battles have not produced even
a few favourable judgments safe
guarding pubbe 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
not invented just for the United
Nanons security council The Paris
convention had started it long before
finally.
The process of withdrawing from
the convention is both tricky and a
long one. It would involve at least
five to six years.
These are lhe reasons why the
summit conferences of the nonaligned movement and the group of
77 have forcefully called for a basic
revision of the Pans convention.
(To be concluded)
The author, former director of rhe
technology division of UNCTAD
(Geneva) is currently Sr. adviser.
World Institute of Development
Economics Research (INC). Hel
sinki
WEDNESDAY, APRIL 8, 1987
-18-
II — Pitfalls Of The Paris Convention
HE post-war world saw the col
lapse of imperialism and the
independence of the colonics The
newly independent countries began
io perceive the perversity of the
patent system, the inequity of the
Paris 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 the 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 the system upon encourag
ing national inventiveness and
securing working of the patents in
the production system.
Il contained several departures, it
excluded cntical sectors of national
interest from patentability — agri
culture, processes of treating human
beings and animals, inventions relat
ing to atomic energy (already made
unpatentable by section 20 of the
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. It
introduced automatic endorsement
for ’ licences of right” so as to use the
patents tn 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 countnes. finally succeeded
in mid-70‘s 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 the other direction —
safeguarding the interests of rapid
industrial development of the third
world But even after eight years ol
negotiations, the revision process is
snll stalled by the fierce opposition
of the western industrialised countnes
Dunng discussions on the re
vision of the Paris convention in
various forums of the World In
tellectual Property Organisation
(WIPO), Geneva, the group of de
veloping countnes have maintained
that any industnal property system
must fulfil the developmental needs
of the non-mdustnalised countries.
Today, India has about 1000 in
house R and D units in public and
private sector industrial companies,
and major investments in publicfunded R and D through the Council
ofScientific and Industrial Research,
Indian Council of Agricultural Re
search, department of atomic energy.
department of space, department of
defence research and institutes of
higher technical/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 the 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 the Pans convention.
India's remaining outside the con
vention has served as the strongest
card in the negotiations to revise the
Paris convention. It has enabled n to
adopt a new patent law safeguarding
its national interests.
Thus there is no change in the
fundamental reasons why India has
all along refused to join the Pans
convention.
In fact, the needs for India’s social.
economic and industrial develop
ment in the present phase, make the
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 the 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.
mint of national industries, particu
larly in the pharmaceutical field.
According to Dr S. Vedaraman. for
mer controller general of patents.
sections 5. 10(5). 47. 66. 87, 88. 91.
93. 99 and 102 of the Patent Act
would require modification if India
joined the convention.
According
to
justice
V.
Sethuraman of the Madras high
court, section 23(1) of the trade and
merchandise Marks Act and section
28 of FERA arc inconsistr: t with the
Paris convention Similarly, section
20 of the Atomic Energy Act of 1962
will face modification
There is a rormioablc legal con
sensus among four former justices of
the supreme court, who have come
out against joining the Paris conven
tion. They are 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 the 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 the convention "is
legally impermissible because it is in
violation of directive principles of
state policy enshrined in article 39’’
of the constitution. It will also lead
to "the infringement of fundamental
rights” a' protected by statute laws.
The Indian drug manufacturers’
association has expressed its strong
opposition to joining the conven
tion. It considers that such an Act
would undermine the 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 F1CCI
had established in early 1986. a
special sub-commiuee on this ques
tion. which came out against joining
the Pans convention. FICCl’s views
were communicated to the govern
ment on May 7, 1986.
Our foremost scientists working
on drug research and manufacture
are against our joining the Pans
convention. These include Dr Nilya
Anand, former director of the Cen
tral drug research institute.
They have warned that joining the
Paris convention would cripple R
and D and technology development
not only m the traditional drug
industry, but also in the new area of
bio-technology,
which
holds
enormous promise of creating a
whole new drug and vaccine indus-
lr>In
’ summary then, economists of
all shades, supreme court justices,
outstanding scientists. F1CCI and
IDMA have added their strong
voices to reinforce India’s de
termined stand not to join the Pans
convention.
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.
1981 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
death.”
(Concluded)
THURSDAY. APRIL 9. 1987. THE TIMES OF INDIA. BOMBAY
-19-
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