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NATIONAL SEMINAR ON PATENT LAWS
NOVEMBER 22, 1988
INDIA
INTERNATIONAL CENTRE'
40, Lodi Estate, New Delhi- 110 003
OCCASSIONAL
PAPERS
CONTENTS
Paper No.l
Protection of Intellectual Property - Indian
Patents Act,1970 - By Convenor
Paper No.2
Pitfalls of the Paris Convention
- By Dr. Surendra J. Patel
Paper No.3
Indian Patents Act, Paris Convention and
Self - Reliance - By Dr. N.N. Mehrotra
NATIONAL WORKING GROUP ON PATENT LAWS
B-1, 2ND FLOOR, J-BLOCK, LSC SAKET, NEW DELHI-110017
OCCASIONAL PAPER NO - 1
PROTECTION OF.INTELLECTUAL PROPERTY
- INDIAN PATENTS ACT, 197Q
COMMUNITY HFA'tm CELL
BACKGROUND
-------------------- 47.71 St .Mark's -R-
The iridian Patent
>ct, 1911 was influenced mainly by tbe
British interests who were ruling this country till 1947, This
Act was so retrograde that it allowed a virtual monopoly of the
Indian markets by fechnologically advanced countries through the
Patent System.
To keep India as their captive marlet,
the
British rulers also did not make India a member of the Paris
Conven tion.
After independence,
the importance of modifying the Patents Act
1911 was amply realised by the leaders of the country.
An
expert committee headed by Justice Bakshi Tek Chand was appointed
to examine in depth the issues relevant for rapid industriali
sation of the country by modifying tbe old Patents Act.
Later
another Committee headed by Justice Rajagopala Iyengar was apnointed to examine the new patents Bill and to recommend appropriate
provisions relevant to the national interest. .Both the Commi
ttees found enough evidence of misuse of natent protection by
various foreign companies,
including the Multinational Companies,
to ensure protected markets for themselves.
More than
patents in India were registered by them and only a few patents'
were worked in the country.
from abroad.
Most of the goods were imported
It was thus evident to these Committees that our
National law was a big constraint in the industrialisation of the
country.
Not only this,
the law even denied the country to obtain
goods for its essential requirements at cheeper prices available
from alternative sources in the international markets.
This
happened because of the patent protection granted to the foreign
patent holders included right of importation also for them.
A National Conference of scientists also provided a strong basis
for changes in the Patent Laws.
Later the Patent Bill was exten
sively debated by the Parliamentary Joint.Select Committee which
even invited experts from all over the world to give evidence and
opinion based on their experience elsewhere.
Both the Houses
of Parliament also had in-depth debates on this major economic
statute.
Thus,
a thorough national debate took place before
the enactment of the new patents Act of l°70.
INDIAN PATENTS ACT, 1970
The Indian Patents Act, lq7o was hailed by many countries and
UNCTAD as one of the most progressive Statutes.
The basic nhilo-
sophy of this Act is to strike a balance between the interests of
the inventor and those of the consumer .to ensure that the bene
fits of new technological development reach t^e consumer as fast
as possible.
Appropriate technologies have been developed and
assimilated for indigenisation of production.
A Monopolistic
regime which comes through the patent system is therefore non
existent in India.
The Patents are granted to encourage invention
and to secure that the inventions are worked in India on commercial
scale and to the fullest extent without undue delay.
BASIC PHILOSOPHY
Section 83 of the Patents Act,197o enunciates the basic principles
governing the Act in the following terms :(a)
"that patents are granted to encourage inventions and to
secure that the inventions are worked in India on a
commercial scale and to the fullest extent that is rea
sonably practical without undue delay ; and
(b)
that they are not granted merely to enable Patents to
enjoy a monopoly for the importation of the patented
article."
The Patents Act, 197o during the last 16 years of its oneration
has served the aspirations of the framers.
behind the Act is still' valid.
industrialisation.
In- fact,
The basic rhilosoohy
The country has achieved ranid
near self-reliance in many indus
trial fields has been achieved basically due to the balanced
provisions of this unique Patents Act.
It has also been possible
to import the patented goods for meeting the country's needs from
competitive sources abroad.
(ZJ—IOO
I
COMMUNITY HEALTH CFLL
Wire
BAUGALOilfi - 5t>0
SALIENT FEATURES
There are many positive features of the Patents Act, 197n.
Section 84 provides for 'Comoulsory Licensing' on application
by other interested enterprise,
if the reasonable requirement
of public interest has not been satisfied and the product has
not become available in adequate quantities and at a reasonable
price in a period of three years.
Further Section 87 provides
for automatic endorsement of 'Licences of Right'
in the case
of methods or processes for manufacture of chemical substances,
food,
medicine or drug.
Again under Section 89 Government
can revoke the Patents if in its opinion a patent or the mode
in which it is exercised is mischievous to the State or gene
rally prejudicial to the public.
There are special provisions under Section 5 in the case
of inventions -
(i)
claiming substances intended for use, or capable
of being used, as food or as medicine or drug, or
(ii)
relating to substances ore^ared or oroduced by
chemical processes
no patent is granted in respect of claims for the substances
themselves,
but claims for the methods or processes of manu
facture are patentable.
As regards the Terms of tbe Patent,
it is 7 years from the
date of application or 5 years from the date of sealing
whichever is earlier for food,
medicines or drugs and
chemical substances.
Further, the registration for the
method or process of manufacture of such substances. In
respect of other inventions,
the period prescribed is 14 years
from the date of patent.
ADVANTAGES FROM INDIAN PATENT SYSTEM
Three important..advantages have accrued to the country
because of the progressive provisions of our Patents
Act, 19 70 s-
(i)
Government have been able to ensure starting
of commercial production of a Patented product/
process inIndia sooner i.e. in 3 years.
Earlier
the patent holders including MNCs used to file
'blocking patents' to maintain a market monopoly
for themselves by importing patented products in
India at exhorbitant prices from exclusive sources
abroad ;
(ii)
Indian Scientists and Technologists have been able
to develop processes suited to. the Indian conditions
and these processes are being -•'orked to achieve
self-reliance.
These processes are cost-effective.
(i 1 i )
It has beer, possible to serve the' consumer by impor
ting even patented products at competitive prices.
This is particularly true in the areas of food, drugs
and chemicals where only the process patents are
allowed.
FOREIGN COLLABORATIONS
It is generally pointed out that because of the inadequate
protection under the Indian Patents Act the registration of
new patents in India is on the decline.
in no way,
affected
This argument has,
the transfer of technology from the
industrially advanced countries.
The Patents Act 197o has
not stood in the way of entering of foreign collaborations
for those products for which technologies are not available
in India.
There has been tremendous' rise in the foreign
collaborations in recent years,
as is evident from the
following table
Year
No.of
Collaborations
1970
1981
183
3 89
1982
590
1983
673
1984
752
1985
1036
1986
957
1987
853
Due to liberal Industrial Policy enunciated during the last
four years,
it is expected that there will be further spurt
in foreign collaborations in the coming years.
The Increase
in foreign collaborations rather than the registration of
foreign patents shows dynamism in India's industrial growth
and capacity to improve self-reliance and absorb technologies
PARIS CON VEN TION - FURTHER THE INTEREST
OF DEVELOPED COUNTRIES
The Paris Convention was signed in March 1883.
there were 97 countries who were its member,
As on 1.1.198
out of which
there are 62 countries who belong to underdeveloped or deve
loping countries and when they became members of the Paris
Convention they orobabaly had no industrial base at all.
there are 3 7 countries which have absolutely r.^
*■
industrial base.
Further, there are 22 members who are
Even now,
signatories to the Paris Convention,
domestic laws,
table.
but accordinoly to their
drugs and pharmaceutical -reducts are un-naten-
These eight countries where chemical substances are
unpatentable.
There are many countries who have excluded
food products from patent System.
heterogenous Convention.
Thus,
Paris Convention is a
It is a club of unequals.
The needs
of a Patent System in industrialised countries is quite diffe
rent from that of the developing countries.
Whereas the deve
loped countries have traditionally been strong advocates of
the Patent System,
the developing countries have been stressing
that the system should help in
their development of indigenous
manufacturing facilities.
PARIS CONVENTION - SALIENT FEATURES
Some of the specific provisions of t^-e Paris Convention which
deserve special mention and which are not in tune with the
philosophy of
the Indian Patent Laws are
Rights of Priority
"Right to Patent despite restrictions or limitations
resulting from the domestic law."
Non-forefeiture of industrial designs despite failure
to work or Importation of orotected articles.
-
Convenient and weak excuses against 'Comnulsory Licensing!
-
No permission to import patented products from competi
tive sources.
-
Effective protection against unfair competition.
-
Amendment of domestic law to give effect to the provisions
of the Paris Convention ;
and
Binding for at least six years before any country can
leave the Convention after joining it once.
The above Articles in essence ensure that a Patentee can
continue to missuse his patent rights against any concern for
the rights of the States who grant these rights and privileges
to the patentee.
Thus, even if the patentee is not at all
interested in working his patent, it becomes extremely diffi
cult to enforce the need for working of the patent or import
o~f the product except from the monopoly patentee.
Thus,
"an overwhelming majority of patents granted to foreigners
through National Laws of develooing countries have been used
as import monopolies".
The above features of the Paris Convention are viewed as
retrograde steps for rapid industrialisation of a country like
India which is still in the developing stage.
The advantages
of joining the Paris Convention are hardly any for the deve
loping countries due to their technological limitations.
the contrary,
On
numerous disadvantages would accrue and hinder
industrial progress of the Patent System provided in the
Paris Convention
(See Table at the end comparing the provi
sions of Indian Patents Act 1970 and Paris Convention).
IMBORTANT VIEWS GENERALLY. QUOTED AGAINST
TOO MUCH PATENT PROTECTION
From time to time,
views have been expressed by important
dignitaries about the patent protection and paramount need
for
self-reliance :
The way in which a foreign patentee behaves,
has been brought
out by Sir William Holdsworth in the following words :
" The foreign patentee acts as a dog in the
manger, sends the patented articles to this
country (U.K) but does nothing to have the
patented articles manufactured here (U.K);
He commends the situation and so our indus
tries are under our own law starved in the
interest of the foreigners".
Sir Robert Reid expressed himself more emphatically when
he said
:
Nothing can be more absurd or more outraaeous
than that a foreign patentee can come here and
get a patent and use it, not for the purpose of
encouraging industries of this country but to
prevent our people doing otherwise what they
would do.
To allow our laws to be used to give
preference to foreign enterprise is to my mind
ridiculous".
Indian Drug Manufacturers Association,
a powerful body
representing the national sector of drugs and pharmaceuticals
also point out the above quotations as strong reasonings for
not joining the Paris Convention.
The process patent has
helped the national pharmaceutical sector to develop process
technologies of a large number of basic drugs and produce them
on commercial scale at competitive prices.
In fact,
the Drug
Industry is now poised to export a large number of bulk drugs
to many developing and developed countries at internationally
competitive prices.
USSR is one of the biggest buyers of
Indian Pharmaceutical products.
Given these circumstances,
the question arises as to why the Indian Patent Laws should
be changed and why India should
join the Paris Convention.
LEGAL OPINIONS ABOUT JOINING THE vARIS CONVENTION
There is formidable legal consensus amongst Four Former
Chief Ju stices zJus tices of Supreme Court who Pave c^me
out against joining the Paris Convention.
Justices Y.3. Chandrachud,
They are
M. Hidayatull ah, J.C.
Shah
and V. R. Krishna Iyer.
As is widely known
these four Justices have in the past
differed on several issues but they are unanimous that
joining the Convention will
require abrogation of several
important provisions of Indian Patents Law which will
seriously harm the economy of the country.
Justice Shah
has gone to such an extent and considers that in his opinion
joininci the Convention is legally impermissible because it is
in violation of the Directive Principles of the State Policy
enshrined in Article 39 of the Constitution of India.
VIEWS OP INDIAN SCIENTISTS
India's foremost Scientists workinc on drug research and
manufacture are also against Indie joining t^e Paris
These include Dr. vi tya "and,
Convention.
of Central Drug Research Institute.
former Director
They have warned that
joining the Paris Convention will crir 'le research and
development
'nd technological development,
not only in the
traditional Drug Industry hut also in the new area of
biotechnology which holds enormous promise of creating a
whole of new Drug & Vaccine Industry.
VIEWS OF INDUSTRY
In 1986,
Government had asked FICCI,
FIEO,
PHDCCI & ASSOCHAM
to give their views about joining the Paris Convention.
Except ASSOCHAM,
all other organisations had recommended to
the Government that India should not join the Paris Convention.
Last year,
a three-member Committee,
Ganguly of Hindustan Lever Ltd.,
Mr.
Mr.
consisting of Mr.Ashok
S.Laha of IEL and
S. Ganguly of Engineers India Ltd,
examined the issue of
joining the Paris Convention.
Although two of the three
Committee Members belonged to MNCs,
the Panel gave a verdict
to the effect that the balance of advantage did not favour
India signing the Paris Convention.
INDO-AMERICAN CHAMFER OF COMMERCE
In 1986,
Indo-American Chamber of Commerce published a study
on protection of intellectual property by Mr. Ashok Pratap,
Barrister-at-Law,
1988.
This publication has b^en undated again in
It deals with all the four forms of intellectual pro
perty in India as elsewhere : Patents,
and Designs.
Trade-marks,
Conyrights,
The study has made a thorough analysis of the
subject comparing statutory provisions in India and in a
number of other countries developed and developing.
The
conclusions are reproduced as follows :-
" CONCLUSION ON PATENTS POSITION IN INDIA
Viewed, therefore, in the totality of the circumstances,
the historical background, the stage of economic deve
lopment and the relative positions of various other
similarly placed countries the Indian Patent legilation
offers adequate and substantial protection to inventiveness
and, with the possible exception of certain narrow and speci
fic areas, is generally of a standard found in other parts
of the world.
This should generate more confidence and less
concern" .
XXXXXXXYYXXYXXXXXX
" CONCLUSION 0M INTELLECTUAL PROPERTY IN INDIA
All of the foregoing should demonstrate that the concent
of the importance of intellectual property in India is
established soundly at all levels : statutory, administ
rative and judicialThe an-'licable provisions do, as
they indeed must, take into account the felt necessities
of the times but this is not done at the cost of the
foreigner.
The comparative studies presented here show
that India is not out of step and in fact enjoys perhaps
the longest history and experience in these matters in
the developing world.
Although industry and Government
can both take a greater part in ensuring enforcement, the
indications are encouraging.
The indepth investigations
and studies undertaken and directed by the Government
from time to time evidence the intent and willingness
to change and adapt as times and needs requirs.
The
example of the film industry hopefully portends a
trend.
In sum, the protection of intellectual property
in India is alive and well."
SUM UP
To sum up,
India signing the Paris Convention or modifying
the vital provisions of its Patents Act, 1*570 diluting its
philosophy in any way is totally not in the national interest
and economic development of the country.
In regard to the
pharmaceutical field in fact Mrs. Indira Gandhi,
Prime Minister,
the former
made the following bold statement at the
World Health Assembly at Geneva in May, 19 81 on natent
protection :
"
My idea of a better ordered world is
one in which medical discoveries would
be free of patents and there would be
no profiteering from life or death".
CONVENOR
National Working Group on Patent Laws
TABLE
COMPARATIVE PROVISIONS IN INDIAN PATENTS ACT 1970 & PARIS CONVENTION
ON MAJOR ASPECTS OF PATENT SYSTEM
INDIAN PATENTS ACT-1970
ASPECT
1- SCOPE
PARIS CONVENTION
Law permits both product and process patents. Process
Patents are for food, medicine, drug, chemical substanCes:
For others : Product Patents
System provides for product patents. Extends
to Industry and Commerce, Agriculture, extractive 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.
LTCZusiNG
Compulsory licences granted after 3 years if
reasonable requirement of public interests not satisfied
about availability; reasonable prices.
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.
COMPULSORY
OF right
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.
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.
RIGHT OF
P'RWTTY
No provision.
Right of priority extendable for 12 months in a'l
member countries from the date of registration
in any one country.
UNFAIR
COMPETITION
Infringement proceedings are possible.
Member countries have to assure effective
protection against unfair competition Reason : contrary to honest practices.
OCCASIONAL PAPER MQ.?
I -Pitfalls Of The Paris Convention
By SURE.NDRA J. PATEL
NDIA’S position about not joining
the Paris convention has remained
well-settled since independence. Our
three successive Prime Ministers.
Pandit Nehru. Shaslriji 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 Pans 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 lojoin or not to
join the Pans convention. Il is im
portant. therefore, that the basic
issues which had guided India for all
these long years against joining the
convention, arc examined once
again so that their full awareness
would show why there is no ease 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 Paris 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.thc products and
processes covered by the grant, h 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
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 tn their colonics upon
conquest. And the United States did
the same in the Latin American
countries under its domination. In
dian patent law was introduced as
early as in 1859. just a few months
after the suppression ol 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 the 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 the third
world markets for the foreigners. It
perpetuates 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 cent 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 the relationships
between the developed and the de
veloping countries.
The Paris convention serves as the
guardian of the patent system. It.
therefore, legitimises all the ine
quities of ihe patent system sum
marised above. The contention was
established during the 19th centuryon the initiative of the United Slates.
It was signed in Paris in 1893, at the
lime the Pans world fair of industrial
products of’’all" nations w as 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. 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
Paris, aboard the same steamship, its
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 It 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 the third world
countries, runs all the way through
the entire structure of the 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 the very strong and the very
weak.
actually
perpetuates
preferences for the 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 intesrst.
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
Nations 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 the reasons why the
summit conferences of the nonaligned movement and the group of
77 have forcefully called for a basic
revision of the Paris convention.
(To be concluded)
The author, former director erf the
.technology division of UNCTAD
(Geneva) is currently Sr. adviser.
World Institute of Development
Economics Research (UXU). Hel
sinki.
Courtesy - Author
WEDNESDAY, APRIL 8, 1987
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
to 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 countncs, 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 Britishimposed 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.
It contained several departures. It
excluded entieal sectors of national
interest from patentability — agri
culture. processes of treating human
beings and animals, inventions relat
ing to atomic energy (alicady made
unpatentable by section 20 of the
Atomic Energy Act of 1962).
Il prohibited the grant of patents
to products for food, pharmaceutical
and chemicals and limited it io only
processes.
The duration of the patent grant
was cut down to only 5 years tn these
items of critical national interest, it
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
Jhc Pans convention mounted in
UNCTAD.
During 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 countries have maintained
that any industrial 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
of Scientific 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/scienlific educa
tion.
Trump Card
India is, therefore, at a stage of
making a competitive entry into
international markets on technology.
Il is at this stage lhal the highly
induslnahscd countries through the
Pans convention can do maximum
damage by blunting the edge of
India's
developing
innovative
capability.
This is the background for India’s
refusal io join the Paris convention.
India's remaining outside the con
vention has served as the strongest
card in the negotiations to revise the
Paris convention. Il has enabled it to
adopt a new patent law safeguarding
ns 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 will compromise
some of the most
important
provisions of our 1970 patent law.
That will underminc the develop
ment of national industries, particu
larly in the pharmaceutical Geld.
According to Dr S. Vcdaraman. for
mer controller general of patents.
sections 5. 10(5). 47. 66. K7. 88. 91.
91. 99 and 102 of the Patent Act
would require modification if India
joined the 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 w ith the
Paris convention. Similarly, section
20 of the Atomic Energy Act of 1962
wjJJ face modification.
There is a formidable legal con
sensus among four former justices of
the supreme court, who have come
out against joining the Paris 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 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” as 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 FICCI
had established in early 1986. a
special sub-committee on this ques
tion. which came out against joining
the Pans convention. FICCI's views
were communicated to the 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 the Cen
tral drug research institute.
They have warned that joining the
Paris convention would cnpple R
and D and technology development
not only in 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
try.
In summary then, economists of
all shades, supreme court justices.
outstanding scientists. FICCI 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 □ better ordered world
is one in which medical discovenes
would be free of patents and there
will be no profiteering from life or
death."
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 Paris
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
(Concluded)
world. But even after eight years of
Courtesy- Author
negotiations. the revision process is
still stalled by the fierce opposition
THURSDAY. APRIL 9. 1987. THE TIMES OF INDIA. BOMBAY
of the western industrialised coun
tries
OCCASIONAL PAPE-R-gOfS
Indian Patents Act, Paris Convention and
Self-Reliance
IX IS Mehrotra
The Indian Patents Act of 1970 has been hailed as one of the most progressive of such legislation in many
countries as well as by UNCTAD. It offers several advantages to entrepreneurs, scientists and technologists and
to consumers. The provisions of the Act help India ensure that blocking and repetitive patents are not allowed
to stifle technological and industrial self-reliance.
According to the Paris Convention rhe protection of the industrial property and rights of patentees has supremacy
over the interests of any country or its people More than 99 per cent of the 3.5 million patents held by individuals
or corporations arc in developed countries and the Convention largely helps them maintain their monopoly in
member countries. If India joins the Convention now, it will be bound to give wider rights to the nationals of
all member countries without matching reciprocity. The disadvantages for India far outweigh notional advan
tages jor any activity, be it in the area of innovation, technological development or industrial self-reliance.
OF late, there has been an increasing de
mand that India should join (he Paris Conventien and if possible, modify its Patent Act
of 1970. This is despite denials by the
government against any such move. This de
mand for revising our progressive Patent’s
Act is certainly not sudden and is perhaps
a pan of the recent campaign to open up
the Indian economy to multinational cor
porations (MNCs) in the false hope of get
ting nex technologies. Large developing (and
emerging) nations like India offer such vast
markets that the efforts to control these
(even through unfair trade practices) are not
only made by these multinational companies
alone but also by the governments of the
developed countries representing them. Thus
the role of dc\elop<d countries during recent
debates m GATT should sufficiently caution
the countries like India if they have any
concern for self-reliance.
Historically, though India was not a
member of the Paris Union, its Patent Act
of 1911 was so retrograde that it allowed a
virtual monopoly of (he Indian market by
technologically advanced countries. Though
after independence, the importance of modi
fying the then existing Patents Act (of 1911)
a as amply realised and two expert commit
tees headed by Justice Rajagopala Iyengar
a^d Justice Bakshi Tek Chand went into
great oetail into the issues of modifying the
men Patent Act. Both the commissions
found ample evidence of misuse of patent
protection by foreign companies (who owned
more than 90 per cent patents in India) and
it was clear that many patents were taken by
the MNCs basically to ensure protected ex
port markets. Thus it was observed that the
country was denied by its own national law
the right of gening, in many cases, goods
otn though they were essential for industrial
production:, or for the health and safety of
the community, at cheaper prices available
from alternative sources because of patent
protections. A national conference of scien
tists also provided the basis for changes in
the Patent Law which was extensively
debated as a Patent Bill by a joint select
Economic nod Political Weekly
committee of Parliament, which invited ex
perts from all over the world to give their
experience and opinion.1 Such thorough
debates for almost a decade had to take
place and bills seeking changes had to lapse
more than once, before the New Patents Act
of 1970 came into being.: All this delay oc
curred in changing the Patents Act of
independent India primarily because of
“heavy criticism from abroad” and opposi
tion to these bills by the associations
representing interests of MNCs in India.
The Indian Patent Act of 1970 has been
hailed by many countries including United
Nations agencies like UNCTAD as one of
the most progressive Patent Acts, i he basic
approach of this Patent Act has been to
strike a balance between the interests of an
inventor and those of a consumer and to en
sure that the benefits of new technological
developments reach the people and not be
exploited by the-inventor alone for monopoly
control. It expects that patents are granted
to encourage inventions and to secure that
inventions arc worked in India on a commer
cial scale and to the fullest extent that is
reasonably practical without undue delay
and that they are not granted merely to
enable patents to enjoy a monopoly for the
importation of a patent article.
Three advantages arc available in the
Indian Patents Act of 1970. The first applies
to Indian entrepreneurs, manufacturers and
the government to ensure commercial pro
duction of a patented product (or through
a patented process) in India where an MNC
or any other person may have filed a block
ing patent to maintain a market monopoly
for importation of the patented product in
India at exorbitant prices. 1 he second apply
to Indian scientists and technologists enabl
ing them to obtain patents cm products and
processes after modifications on esi.-tm.;
patents. This was not possible earlier due to
virtually all-encompassing patents which
were allowed by the Patents Act of 1911
similar io which the provisions also exist in
the Pans Convention. The third type of
August 22, 1987
advantages accrue to the consumer since
(a) even patented products can be imported
from manufacturers in the countries where
such patent protection may not be available
and (b) competition in the production of
even the erstwhile patented products causes
a decline in the local prices, if the produc
tion can be ensured through indigenously
developed (or imported) modified process
This'is particularly true in the area of food
and drug products where no product patent
is allowed in India and even the process pa
tent is allowed only for a short period of 5
to 7 years.1
Some of the specific positive features of
Indian Patents Art of 1970 are “revocation
of patents in public interest (article 66. 89);
licences of right (article 86. 87); compulsory
licensing being mote rigorous (article 84, 97);
licensing of related patents (article 96);
power of the government to use inventions
for the purposes of government (article 100)
or in the public interest even to third parties
(article 101), acquisition of inventions and
patents by the central government (article
102). Besides not allowing product patents
on food and drugs, patents arc also not
granted for products related to atomic energy
and space applications. Article 47 of the /Xcl
provides that the government can even im
port patented m-.dicines and drugs for their
own use or distribution to
v’sye.warics;
hospitals or medical institutions’.
It should be clear that the above provi
sions not onlv help the Indian consumer but
also help India ensure that blocking and
repetitive patents are not allowed to stifle
technological and industrial self-reliance It
may be worthwhile to note that many of
these provisions of the Indian Patents .Act
have been adopted by a diplomatic conference
under WIPO in the proposed revision o!
various articles (particularly article 5 and 5
ter) of the Paris Convention. Most of these
provisions arc made to remove hindrances
that are placed by the patentees on working
of their patents 4
1461
Paris Convention and Monopoly
of Patentees
(ii)
Membership of convention will help broad base of scientific research. While
non-resident Indians to return to India.
.opinions on the cxteqi of contribution of
(iii)
Indian Patenting abroad is beco’mrng'indigenous • scientific And technological
On the contrary, Paris Convention has
important for India from the angle of research to development of technology and
philosophy according to which protection of
industrial base in India may differ, it is not
exports.
industrial property and rights of patenfee are
(iv)
International protection for Indian debated that the contributions of indigenous
given supremacy over the interest of any
patents abroad will encourage scientific research right from agriculture to space
country or its people,5 Though there have
technology and industrial research have
research in India.
been several modifications in the original
(v)
Faster information flow on patents is made significant impact on the growth of
convention of 1883 because of six revisions,
an essential rquirement for the sound deci indigenous industrial development.12' 15
less developed countries (LDCs) have been
Major components of technology are the
sions on foreign collaborations and this re
dissatisfied with several provisions of the
quirement can be met only by the member know-how and capability to perform a given
convention which put fetters on their na
task. Since the inventors and developers of
ship of Paris Convention
tional administration in the interest of pa
(vi)
Better climate for patenting by the technology would like to derive some bene
tent holders, who are almost invariably from
foreigners in India will enable India to fits from their endeavour, they like to keep
developed countries. While many subsequent
obtain technical collaborations rather than both the know-how as well as these capa
amendments have been more favourable to
having to seek turnkey projects of foreign bilities as secrets to themselves. In order that
patentee, 20 countries of the union have not
collaboration arrangements having a wider the benefits of this technological develop
signed subsequent amendments to the Paris
scope.
ment arc shared by others without prejudice
Convention.6 These countries have thus
(vii)
Membership of the convention will to the interests of the inventor, a system of
safeguarded their interests by not subscribing
help India in getting a better deal in acquisi patents-and inventors’ certificates had been
to these adverse clauses of the convention.
tion of technology from small and medium introduced-. While a patent provides the
However, countries like India who may join
companies and motivating foreign investors patentee the right To exclude others from
now have no such option and are thus faced
to transfer the latest technology.
using the patented invention (subject to na
with a situation where they will be bound
(viii) Membership will help India to in tional law), the owner of an inventor’s certi
to give wider rights to nationals of such 21
tervene in the revision of the convention.
ficate has the right to receive remuneration
countries without matching reciprocity.
It will be appropriate to examine carefully for the use of invention while the exclusive
Some of the specific provisions of the Paris
whether the above mentioned propositions right is transferred to the state.14 While the
Convention which deserve special mention
bring out any real advantage to a country patents and other forms of intellectual pro
in this regard are Rights of priority (arti
like India in its scientific, technological, or perty rights do provide an incentive to the
cles 4C(4), 4F and 4H) , right to patent
inventors, they also allow them to control
self-reliant industrial development.
despite restrictions or limitations resulting
technology transfer as well as further
from the domestic law (article 4 quarter), no
Patents, Technological Develop technological development tn many ways. It
forfeiture of industrial designs despite failure
should, however, be recognised that while the
ment and Industrial Self-reliance
to work or importation of protected articles
patent licencee may not give any information
Let us first examine the role of patents in on know-how and technology, the patentee
(article 5B), convenient excuses against com
pulsory licensing (article 5A(4), no permis
technological and industrial development. may not allow exploitation of a technology
sion to import patented products (article 5
Industrial development requires both the even if others have know-how and other
quarter), effective protection against unfair
capital and technology, besides raw materials details of technology utilisation. This is
and the human capability to make effective becoming increasingly important due to the
competition (article 10 bis), amendment of
use of these sub-systems. The Scientific fact that most of the technologies as well as
domestic law to give effect *o the provisions
Policy Resolution of the Indian government patents are today controlled by MNCs from
of the Paris Convention (article 25) and bin
of 1958 stressed the key role that technology the developed countries.16 Thus, the in
ding of at least six years before any country
plays in industrial development.9 However, ternational trade in technology is between
can leave the convention after joining it once
(article. 26(3) and (4) ). The above articles
it must be kept in mind that the technology unequal partners and this imbalance is used
should not only suit the socio-cultural- by developed countries and their MNCs for
in essence ensure that a patentee can con
economic milieu of a nation but should also economic, technological and industrial ex
tinue to misuse his patent rights against any
be under national control, rather than ploitation of developing countries through
concern for the rights of the states (or its
jeopardising its self-reliance. This was amply restrictive business practices.17 It was
people) who grant these rights and privileges
realised by the Industrial Policy Resolution against this monopoly and exploitative con
to the patentee. Thus, even if the patentee
of 1956 of the Indian government.10 In fact, trol in science and technology that UN
is not at all interested in working his patent,
the Scientific Policy Resolution of 1958 was bodies like UNCTAD have been constantly
it becomes very difficult to enforce the work
in that context a natural corollary to the In raising their voice, demanding that the
ing of the patent or import the product of
dustrial Policy Resolution.*1
the patent except from the monopoly
benefits of modern science and technology
Technological developments in a country should also reach developing countries and
patentee. Thus, "an overwhelming majority
can be based both on indigenously efforts have been made by UNCTAD to
of patents granted to foreigners through
developed technology as well as on import develop an international code of conduct for
national laws of developing countries have
of the required technology. To a developing transfer of technology.18 It is in this context
been used as import monopolies."7
country like India, it is often contingent to that one will have to examine the role of in
Despite the fact that about 99 per cent of
import the required technology since it ternational patent treaties like Pans Conven
the 3.5 million patents are currently held by
cannot always wait for its indigenous tion and their influence on technological
residents or corporations of developed coun
development. However, even the import of development and industrial self-reliance of
tries and that the Paris Convention largely
technology is influenced by the technological an emerging, though developing country like
tries to help these patentees in maintaining
status of the importing country and the India, in order to find correct answers to the
their monopoly in the member countries,
assimilation and development of such im advocates of Paris Convention.
some of the advocates of Paris Convention
ported technology is governed by both scien
have been arguing in favour of India’s join
tific as well .as industrial capabilities.
ing the convention on the following
Paris Convention and Indian
Recognising the importance of tecluiological
grounds:8'
Technological Self-Reliance
(i)
Membership of Paris Convention is im development and the role that science and
Given the character of the Paris Conven
technology plays in today’s society, Indian
portant for obtaining better facilities for the
planners encouraged the establishment of a tion described earlier, let us sec how India’s
Tiling of foreign patents.
1462
Economic and Political Weekly
August 22, 1987
joining this union at this stage will help it
Convention, Indians just as any other ting in India (and other non-member coun
in any concrete terms. If we analyse the
members will have to file patent applications
tries) the processes based on incremental in
grounds on which it is advocated to jcrin the
in all the countries where they want any legal
novations but also of manufacturing thes.
Paris Convention, these enn be broadly
rights on patents. The only advantage that
products in India as well as exporting tech
classified under three categories. Analysis of
they do not get now is of getting automatic
nology and their products to non-member
these claims under oil these three categories
priority of 12 months in filing a patent in
countries. The case of the pharmaceutical
are given below:
any country of the convention. The lack of
industry is a well known example where
I
Procedural advantages offiling patents this single advantage to India’s in a selected
Indian inventors and industry have been able
abroad, getting information on patenrs and
few cases of patents, which have been of
to achieve such advantages only because of
priority rights in the member countries
consequence, has not created any problem
the Indian Patents Act of 1970 and India not
All these advantages arc relevant if Indian
in the past and is not likely to create any pro
being a member of Paris Union. Thus Indian
inventive activity was at a level where Indians
blem till such a time that Indian innovative
pharmaceutical industry today produces
have to file a large number of patents
activity reaches a level which requires its con large number of drugs for which interna
abroad. However, Indian research and deve stant transfer to other developed or develop
tional patents are yet to expire (Thblc 3),
lopment activity in most areas is unfor
ing countries. Today, India does export tech besides having large number of process
tunately still at a stage where not many new
nology to other developing countries (and
patents based on incremental technological
inventions are often made, particularly of in a few cases, even to developed countries),
advancements. The Paris Convention (arti
the type that require patenting abroad, more
none of this technology, however, has any
cle 4) provides priority even for elements
so which have the potential of working
significant patent protection value (Table 2).
which do not appear among the claims for
abroad. For example, out of 300 parents
Il is not likely that this picture is going to
mulated in the application in the country of
granted to CS1R since 1981, only a few could
suddenly change to let Indiabecomc a major
origin. Such provisions can influence the ex
technology (patentable) donor, requiring
isting advantage of incremental innovation
be licensed or worked abroad. This is Largely
urgent measures to derive advantages of that developing countries like India enjoy
true of other research organisations and
today.
units also, both in the public and private sec priority offered by the Paris Convention.
On the contrary, Indian innovators today
It was for such reasons alone that almost
tors. There are no indications of any signifi
have a definite advantage of not only paten 40 countries of the world do not offer pa
cant changes in the objectives of Indian
R nd D agencies or in their character of
Table 2: CS1R Technologies Exported to Various Countries
R and D, programmes expect a boom in
Indian patenting activity abroad. Even the
extent of Indian’s filing patents in India itself
has been almost constant in the decade
1974-75 to 1983-84 (Table 1). In fact patents
contribute only marginally as incentive to
worthwhile inventive activity whereas several
other factors namely climate for technology
supply, market demand, pattern of industrial
development, industrial R and D nature of
training and education, etc, are more impor
tant.’9 Thus, merely joining the Paris Con
vention or giving more rights to patentee is
not going to significantly increase lhe in
novative activity in India. Several! other
changes are probably more imponann in this
regard.:0- 2,1 22
Even if we assume that there is ai likeli
hood of increased inventive activity i.n India
which would demand filing abroad of more
patents by Indians, do Indian inventors face
any specific problem(s) that could be solved
by joining the Paris Convention? So far as
translation facilities in several European
languages is concerned, these are available
to Indian patentees through the European
Patent Office w here a patent filed in zmy one
language is automatically translated into all
other European languages. So far as. actual
Tiling of patents is concerned, Indians even
today do file patents in other countries (in
cluding those which are members cf Paris
Convention).. Even after joining the Paris
Countries
Technologies
1
Burma
2
3
4
5
6
7
8
9
Malaysia
Nepal
Philippines
Sri Lanka
USA
West Germany
Egypt
Indonesia
Menthol, sodium alginate, bentonite, electrolytic manganese
dioxide, miltone, orange juice concentrate, glue and gelatine.
calcium carbide, potassium schoenite, terpincol, diosgenin and
progesterone, phenol-formaldehyde, model distillation column.
electro-chemical metallurgy, workshop, straw-board and special!
ty paper, hard board, special laboratory equipment, electronic
instruments (pH meters, etc.)
Spice-oleoresins.
High-draught kiln, spice-oleoresins.
Active carbon from saw-dust, fish meal.
Buff coloured green pepper.
Syntan-PKR.
Suri transmission.
Rice bran oil.
Water filter candle.
Table 3: Illustrative List of Bulk Drugs for which Technology Could Be
Indigenously Developed Or Acquired, and Production Undertaken
is a Consequence of Patents Act of 1970
Period when the Patent
Expires/Expired
Name of the drug
1981
1984
1985
1986
1987
1988
1989
Ibuprofen, clofibrate. tetramisole and verapamil
Allopurinol, betamethasone and derivatives (1984-87)
Tinidazole, chromoglycate
Lorazepam
Pyrantel
Propranolol
Mebendazole, salbutamol, clotrimazole, ketoprofen levamisole.
bumetamide
Cimetidine, metoprolol
1992
Table 1: Number of Applications for Patents from Persons in India anu Abroad Year-wise from 1974-75 to 1983-84
1983-84
Indians
Foreigners resident in India
Foreigners resident abroad
Total
1982-83
1,055
25
2,065
3.145
1,135
1,950
3,085
1981-82
1,093
19
1,877
2,989
1980-81
1,159
19
1,776
2,954
1979-80
1978-79
1977-78
1976-77
1975-76
1974-75
1,055
37
1,888
2,980
1,124
13
1,795
2,932
1,097
37
1,736
2,870
1,342
23
1/39
3,104
1,129
34
1,833
2,996
1,143
66
2,192
3,406
Source: Annual Report.
Economic and Political Weekly
Au gust 22, 1987
1463
ship of the Paris union under such a lame
excuse.
Thus, it is apparent that at this juncture
the disadvantages to India in joining the
Paris Convention far outweigh some no
tional advantages for any given activity, be
it innovative activity, ’ethnological develop
ment or industrial self-reliance. India has
therefore, wisely decided against joining the
Convention unless it is modified so as to be
a balanced tool of interest both to developed
as well as developing countries. A country
like India can mobilise more pressure from
outside (through forums like NAM and
UNCTAD, etc) for such changes in the Paris
Convention than by joining it. Moreover.
once it joins the Convention, it cannot walk
out of this union for at least six years dur
ing which enough blocking and repetitive
3
Help in Technology Acquisition and patenting may be done by th£ vested interests
Development
of industrialised countries. For those who
According to the fourth Reserve Bank of still want to advocate India’s membership in
India Survey, 40 per cent of the companies
the Convention, we pose a set of questions:
covered were able to obtain technical colla
* I In how many cases in the last 15 years
boration agreements despite Indian absence
have Indian inventors incurred losses due to
lack of simultaneous filing priority (an ad
from the Paris Convention, compared to 35
per cent of the companies covered in the vantage which is likely to be available as a
result of joining Pans Convention)?
third survey. This clearly indicates that the
technology market is becoming interna
2
In how many cases in the last 15 years
tionally competitive to allow access to
has technology import been refused/delayed
technology even without membership of due to India pot being a member of Paris
Paris Convention. This is equally true of the Convention?
3
In how many cases has patent/infoma2
Patenting Advantages to Indians for fact that more progressive patents acts not
lion been rcfused.#delaycd to India because
Patenting Abroad and Increase in Indian In only in India but also in other developing
countries like Mexico and Colombia have of it is not a member of Paris Convention?
ventive Activity
not negatively influenced the inflow of
4
How often in the last 20 years has
As discussed in the earlier paragraphs, the
technology or direct foreign investments in. patent protection been used as a tool to stop
inventive activity in India is not likely to sud
these countries.24 While the foreign
the import of (a) new products (e g, drugs,
denly increase. Moreover, the argument for
technology donors would prefer more etc) and (b) new technological process (par
better patent protection abroad to get more
favourable patents acts, the patents clearly ticularly before the introduction of our new
returns to Indian inver.tors/researchers to
are not becoming any hindrance in tech Patent Act of 1972)?
protect against infringements abroad with
5
Can India join Paris Convention
nology transfer.
the accession to Paris Convention is hardly
without really modifying its Patents Act as
valid. When we look at (a) priorities of
Thus, out of 371 companies having also (he trade-marks and design Act?
Indian R and D. (b) extent of cross-licensing
technical collaborations in the fourth RBI
6
Is India changing its own stand at the
of patents in our technology transfer
Survey only four cases in the private sector
UN (UNIDO. UNCTAD, etc) and NAM
agreements and (c) the nature of export and
(0.1 per cent) involved patents and
where it has been advocating against join
manufacturing activities abroad.
trademarks together or patents alone.13 It
ing the Paris Convention until it is modified
was only in 24 per cent cases that patents in the interest of developing countries?
Most of scientific and technological
or trademarks were involved with know-how
research in India is done in government
in technology transfer. In 80 per cent of the
funded R and D institutions and their
Notes
580 cases of the total technical collaboration
research objectives have hitherto often been
agreements, Indian collaborators were
of generating technology tor indigenous
(Views expressed in this paper are those of the
granted exclusive rights by the foreign col
markets, utilisation of its resources and pro
author and not necessarily of NISTADS]
laborators. A large number of small and
viding services to industry and other service
I
Minutes of the Joint Select Committee on
medium size firms have also been transfer
sectors and assimilation of imported techno
the Patents Bill of 1967 cited in IDSfA
ring their technologies to India. They have
logies, besides conducting basic research to
Bulletin,
XVI1 (12), 19S6, Supplement Pares
also
been
patenting
in
India
in
considerable
keep abreast of frontiers of international
1-48.
strength. Similar has been the experience of
research. Thus, it was natural that our paten
2
U
Baxi
in “Inventive Activity injhe .Asian
many other developing countries "parti
ting activity was of little commercial con
and Pacific Region", WIPO, 1980. pp
cularly for the development of relatively
sequence. Without major changes in our
95-102.'
science and technology policies and the
labour-intensive and small-scale industries"
3
"The Patents Act. 1970" Eastern Book
with "less restrictive terms and conditions
character of the S and T infrastructure
Company, Lucknow. 1985.
than large TNCs” and in a manner as to
(namely larger role of corporate sector), it
4
A K Koul, ‘Technology. Paris Convention
“allow for greater participation and learning
is highly unlikely that international patents
and India—Some Thoughts’, paper pre
by doing by local firms in the host coun
can become any motivating force for Indian
sented at National Seminar, on Indian
tries".*6 Thus, it is clear that the flow of
R and D. On the other hand a global orien
Patent System and the Paris Convention
technology into India (or even into other
tation in R and D of several MNCs operating
Legal Perspectives, Delhi, 1986.
developing countries) is hardly influenced
in India do have an interest in international
5
Q H C Bodenhausen, “Guide to the Ap
today by patent restrictions and therefore,
plication of Paris Convention for the Pro
patent protection particularly since they also
it
may
at
best
be
an
alibi
to
seek
the
member
tection
of Industrial Property", .BI RPL
have live links with their parent companies
tent protection to pharmaceutical products
and some of them do not provide patent pro
tection even for processes used in produc
tion of pharmaceuticals. They include all the
leading pharmaceutical markets in the
developing countries, ranking among the 15
leading wo'-ld markets, c g, Brazil, Argentina,
Mexico, South Korea and India.23 I he dif
ferences in the approach of the developed
and developing countries (almost opposite)
arc clearly related to the differences in
economic and technological circumstances
prevailing in each group of countries. The
range of effects of patent protection in the
pharmaceutical sector clearly shows the
serious implications of the degree of protec
tion that is offered in these countries. It is
also for this reason that lobby of thepharma.'eutical MNCs is one of the most powerful
votaries of India joining the Paris Conven
tion and changirfg the present Patents Act.
Another argument, namely of getting bet
ter information (low due to joining of Paris
Convention is not true either since India even
now gets all the necessary information on
patents, including patents search through
WIPO, European Patent Office and Berne
convention membership. In fact, what is re
quired is the strengthening of the Nagpur
information centre as well as the creation of
more regional centres and following inter
national classification system in India.
14 64
in the west. While Indian subsidiaries of
MNCs may be benefited by joining Paris
Convention, it can hardly be a cause for pro
moting Indian R and D. On the contrary.
as discussed earlier, it may stifle Indian
R and D (and utilisation of its results) by
way of blocking patents which may become
easier as a consequence of joining the Paris
Convention. In fact, Indian manufacturers
can often be put to the disadvantage of not.
being allowed to manufacture or export
many products involving incremental
modifications in patents. For example, if wc
were a member of the Paris union, the Bajaj
auto factory (producing and exporting
scooters) would not only have been forced
to stop exports (and pay damages) but also
indigenous production of these scooters.
Economic and Political Weekly
August 22, 1987
6 Indus!rial Property, January 1987. pp 5-8.
UN Publication Sales No E75HDI and D-2
7 UNCTAD Report “Promotion of National
cited from A K Koul above
Scientific and Technological Capabilities
18 UNCTAD Conference oh an International
Code of Conduct on Thansfer of Tech
and Revision of the Patent System**.
nology. Genoa 1983.
TD/B/C6/AC2/2. July 1975.
19
P Banerjee, V B Lal and P Nath. “/Ar
8 Iqbal, T, 'International Patent System and
rangements for the Promotion of
India’s Econo mic/Tccbnicnl Co-operation
■’ • -! ’
- <. -n
. .
u
?.. / •
’
-I
Ccu.Anes U
.j ,
t -Zeby
of Scientific and Industrial Research (ac- .
N1STADS to WIPO, March 1987.
ceplcd for publication).
9 “Scientific Policy Resolution*', Gcr«rrruT.ent 20 N N Mehrotra, ‘Indian Science. What is
Wrong? What is Right?*, Bulletin of the
of India, 1958.
Association of Scientific Workers of India,
10 “Industrial Policy Resolution”, Government
1983, 13 (9), pp 133-140.
of India, 1956.
11 Dtnesh Abro! el al, “Scientific Pobcy Resolu 21 N Ray in “Management of Indian Science
for Development and Self-Reliance" Ed,
tion: A Different Perspective”, N1STADS,
N N Mehrotra ci al. Allied Publishers,
1985.
Delhi, 198?. pp 32 35.
12 V Rae Aiyagari and P J Lavakara, Depart
22 “Promotion and Encouragement of
ment of Science and Technology, J9SI.
Technological Innovation. A Selert-v*
13 •’Seventh Five Year Plan !9E5.«y\ Vol I.
Rrv-.jv. of Policies and Instruments’*.
Government of India, 1.13 to 1.16.
UNCTAD Report TD/B/C6/139 of 1986.
14 “Role of Patent System in the Transfer of
23 UNCTAD Report TD/B'C6/AC 53 of 1981,
Technology to Developing Counties",
P29.
UNCTAD, New York, 1975.
15 “RrvScv of Current Trends in Patents in 24 Ibid, p 23.
25
“Foreign Collaboration in Indian Industry”,
Developing Countries? UNCTAD. Geneva,,
Fourth Survey Report 1985, Reserve Bank
TD/B/C6/AC5/3 of 1981.
of India, Bombay.
16 A K Koul. ’UNCTAD Code on Transfer of
Technology 1985’, Foreign Trade Revur*\ 26 “Trends in International Transfer of
XX(2) pp 141-162.
Technology to Developing Countries by
17 “Major l«sues Arising from the Tr.nsfer of
Small- and Medium-sized Companies",
UNCTAD, TD/B/C6/138, 1986.
Technology to Developing Countries 1975“,
tourtRsy - Author
NATIONAL WORKING GROUP ON PATENT LAWS
OBJECTIVES
To discuss issues relavant and related to the Patent Laws
and Paris Convention ;
To arrange for research and publication of papers relating
to these issues ;
To help create a better understanding of these issues by
organising meetings, seminars and public debates ;
To represent to the Government and those concerned with
the formulation of policy on agreed views of the Group ;
Publicise and organise publicity ;
in respect of India's and international patent and related laws
and policies.
To forge a National Alliance of various Organisations/Forum/
Associations, etc.to work towards and campaign for patent
laws and policy best suited for India's interests.
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