3103.pdf
Media
- extracted text
-
NATIONAL SEMINAR ON PATENT
NOVEMBER 22, 1988
INDIA
INTERNATIONAL
OCCASSIONAL
PAPERS
LAWS
CENTRE
- VOLUME II
CONTENTS
Paper No.l
A Monopoly by any other Name
- Dr.Rajeev Dhawan
Paper No.2
Indian Patent Law & the Paris
Convention - Dr.Nitya Nand
Paper No.3
Renewed Foreign Interest in Patents
- The Reality and its consequences B.K.Keayla
Paper No.4
Reprints of newspaper cuttings
NATIONAL WORKING GROUP ON PATENT LAWS
B-1, 2ND FLOOR, J-BLOCK, LSC SAKET, NEW DELHI-110017
a mo
U*».
.{JNITY HEALTH CEL’
-
326 V Main, I Block Koramana
Patent law is i.; i he news again. This time at the
behest of the multi-nationals supported by powerful
nations hungry-even desparately so - for markets over
which they want exclusive monopolies. At the Uruguay
Round of GATT Multinational Trade Negoti-at ions in the
June 1988, a collective statement, produced after two
years of deliberation, was presented by European, American
and Japanese business. Entitled, "Basic framework of GATT
Provisions on intellectual Property", its purposes were
to take
"...two important steps ...(a) the creation of an
effective deterrent to'international trade in goods
where there is an infringement of intellectual
property rights; and (b) the adoption and implementation
of adequate and effective rules for the protection
of -intellectual property”
It is easy_ to surmise: for whose benefit?- dnd, to what end?
Meanwhile the lobbies have been busy to persuade India to
change its relatively recently enacted Patents Act 1970.
This conspiracy of stealth is made possible by the
apparent remoteness of the patent law from the lives of
the people. It is rendered all the more obscure when
central issue is posed in the mystifying form: Should India
join the Paris Convention? What is hidden from the public
is the impact of all this on their lives: more expensive
medicine, a hike in prices of items using chemicals and
fertilizers, a strengthening of product monopolies all round
and the marginilization of India's own research and
development (R&.D) efforts.
The new moves are not' an attempt at persuasion. They
are backed by the threat of a protectionist trade war; and,
much else besides.
The Paris Convention
The Paris Convention 1883 was part of a centuries
old trend of the Western nations to try to carve out areas
of the world for exclusive exploitation. If the Bull of
Alexander IV divided the world into two (giving the East
to Portugal and the West to Spain) and various grants
(like those to the East India Company) gave exclusive
trade rights to chosen national companies, the Paris
Convention 1883 was an imperial splitting up of the
world markets to feed the expanding demands of an
acquisitive capitalism.
What the Paris Convention - amended in 1900 (Brussels)
1925 (The Hague), 1934 (London), 1958 (Lisbon) and 1967
(Stockholm) - did was to interpret "industrial property
in the broadest sense... not only to industry and commerce
proper but likewise to agricultural and extractive indus
tries and to all manufactured and natural products"
* Director, public Interest Legal Support
Research Centre (PILSARC)
. . . .2
(Article 1(3). National of signatory nations could by
the simple expedient of taking out a patent create an
exclusive monopoly for the product and/or the process
by which it was made. All this without even committing
oneself to producing the product or using that process
in the country for which that market is claimed (Article
5 (non-forfeiture). A stake could be claimed to the
markets of the member nations ‘by filing in any one nation
first (Article 4 - right to priority); and, all the rest
within 12 months. And, to make sure that the less
developed nations did not keep rich and powerful
foreigners out, equality of national treatment was
proclaimed (Article 2 and 3). What provisions! Guaranteed
markets for a substantial period of time in countries
where the monopoly holder did not have to spend a paisa
manufacturing the product! The grant of a patent was
compulsory even.if sale restrictions were imposed round
the product (Article 4 quater ). A monopoly could also
be built round the product from a patented process (Article
5 quater ). Compulsory licensing, if the patent was not used
for three years, and revocation, two years later, was possible
unless the "patentee could justify) his. inaction for legi
timate reasons" (Article 5(4). All this in the name of the
poor inventor (Article 4 ter) whose creativity was - in
virtually all cases - absorbed or cheaply bought out by
mighty enterprizes.
II
The case for India joining the Paris Convention was
supported by the Bakshi Tek Chand Report of the Patents
Enouiry Committee 1948-50 (prs 265-70 pp 110-111) ; but,
decisively rejected by the Ayyangar Committee Report on
the Revision of Patents Law 1959 (prs 304-8 pp 117-9).
Since then India has not looked back. The patents Act 1970
was a genuinely indigenous response, following from a
move in the United Nations by Brazil in 1961 to reagitate
the issue of the world patents system. From 1974 UNCTAD
initiated further discussions from the point of view of
LDCs. But, the rich and powerful nations have struck back
both publicly, as evidenced by the document to .GATT (1988),
and, more covertly through the silent but powerfully
effective means of business and official diplomacy. The
impact of this diplomacy has been felt in India.Responding
to a parliamentary question on 25 April 1984, the Minister
of State accepted that there was pressure from the World
Intellectual Property Organisation (WIPO) to join the
Convention; but that no*decision had been taken yet (48
L.S.D. (7d.)153-4) Even though, it was made clear pharma
ceuticals would be protected (ibid; cols 77-8)’, mischief
was afoot. But, WIPO pressure is only a constituent part
of a rnfich more uncomprizing pressure is being brought to
bear on the government now.
3
India's own law is the product of much deliberation.
Two Committees (Bakshi Tekchand, 1950; Ayyangar,1959);
three Bills (1953, 1965 and 1967), two Joint Committees
of Parliament (1965-7 and 1968-70) and long debates in
parliament on the Patents Act 1970 (44 L.S.D. (4d.)cols.
1-164; (29 August 1970); 73 R.S.D. 39-126(3 September 1970)
One has only to skim over the Joint Committee Reports to
see how extensive the multi-national lobbies were. Indian
markets were ripe for caputre; and a new patent law was
the means to achieve that end.
Ill
India's patent law seems to give the public interest
priority over the rights of the individual inventor (in
this case subsumed by rich manufacturers and multinationals after all, it is only multi-nationals who seek trans-national
markets). In a spirit entirely at variance with the Paris
Convention or, for that matter, multi-national demand Indian legislation.seeks to ensure not only that inventions
are encouraged but "worked on a commercial scale (in India)
... to the fullest extent that is reasonably practicable
and without delay; and... that they are not'granted merely
to enable patentees to enjoy a monopoly for importation
of the patented article" (Section 83).-That the Act falls
short of this declared ideal is another matter.
And so, many exceptions are made. Patents dealing
with atomic energy cannot be granted and liable to be
revoked (Sections 4 and 65 ; also Raytheon A.R. 1974
Cal. 336).Patents for food, medicine and drugs will last
7 tears from the date of the patent, as opposed to the
usual 14 (Section 53), Such food, medicine and drugs along
with those for chemical processes shall be just process and
not product patents (Section 5). The import monopoly for
products and exclusive use of processes can be breached by
government for its own use (Section 47). A patent may be
revoked in the public interest if "a patent or the mode in
which it is excercised is mischevious to the State or
generally prejudicial to the public" (Section 66). Those
who do not work their patents in India for 3 years can be
forced to grant compulsory licenses if the "reasonable
requirements of the public ... have not been satisfied or
the ...invention is not available to the public at a
reasonable price (Section 84 and 85). Certain patents dealing
with food, drugs, medicine and chemical processes will be
automatically endorsed with "licenses of right" and are
vulnerable to a form of compulsory licensing straightaway
(Section 86). Two years after a compulsory licence has been
granted, if the requirements of the public remain unsatisfied
the patent may be revoked (Section 89).
This scheme in the Indian Patents Act 1970 differs
greatly from the Paris Convention. Its purpose is to prevent
monopolies, encourage manufacture in India, provide specially
for food, drugs, medicine and chemicals and give over
riding importance to the public interest. Yet, far from
falling short of reasonable standards, many feel that the
Indian legislation does not go far enough in the elimination
of foreign monopolies and protecting the justifiable interest
. . .4
of the public
IV
The truth about using patent law for creating
monopolies for foreigners is much worse than is normally
imagined. From 1856 when the first protection to patents
was given, Indians filed few applications. None out of 33
in 1856, 45 out of 492 in 1900; 62 out of 667 (though
199 originated in India) in 1910; 345 out of 1725 (399
originating in India)in 1949 (Bakshi Tek Chand Report
(1950) 121)were filed by Indians. Since Independence
non'-Indians dwarf Indians for applications for patents
(1950:81%; 1955:87.1%; 1960:85.3%; 1965: 85.4%, 1970:
78.3%). (Ayyangar Report (p 370) and Annual Reports of
the Controller). Under the Patents Act 1970, the position
has not altered (1972-3:68.6%; 1976-77:56.8%); 1076-7:71.8%)
(ibid:Annual Reports). In 1986-87, the number of foreign
patents sealed in India were 74 %. For that year, 83.4%
of the total patents in force in India were foreign owned.
And, if this picture is not striking enough, it should be
remembered that even Indian owned patents are likely to
be manipulated by foreign business; or be the product
of collaborative ventures. Indeed, foreign ownership of
patents registered in India has to be understood again’st
the backdrop of increasing foreign collaborative ventures.
The largest number of patent applications in India came from
Americans. Further out of 67 foreign collaborations in May
1988, 43 were technical, 4 drawing and design and 20 financial.
Why invest money when you can sell closely guarded knowledge
profitably ?
There are many problems with the operation of the
patent law. In 1986-87, 10,363 applications had to be
dealt with by the patent office, out of which 6874 had
to be carried over from the previous year. 4874 applications
were examined, 1006 abandoned for legal reasons and, 5250
carried over to the next year and only 1706 accepted during
the year. It would appear that the law courts are not the
only institutions plagued with arrears of cases!
But, apart from these management difficulties, I
think that there is an incomplete appreciation of the
social and public purposes behind the Patents Act 1970.
Let me take one complex but important example. In India,
only a process patent is given for food, drugs, medicine
and chemical processes. Both the Joint Committee on the
1965 Bill (see pr. 19 p.viii) and the 1967 Bill (see pr.18
and 25 p. vii) categorically refused to accept that a
product monopoly can be built out of a process patent
in respect of products made from that process. Shri
Dandekar tried to introduce an amendment to make such a
monopoly possible on the floor of the Lok Sabha (44 L.S.D.
(4 d.) 95-8(29 August 1970)); but this move was decisively
rejected by the Minister, Shri Dinesh Singh (ibid:col 102).
Yet the jurisprudence on patent law continues to build such
product monopolies into process patents as shown by Justice
Mukharji's views in the Imperial Chemical Industries case
(A.I.R. 1978 Calcutta 77). Seemingly, technical, the failure
. . .5
:
5 :
is one of juristic theory - a failure to fully embrace
the public interest implications, and philosophy, of
the Patent Act 1970 itself. Alongside, as my friend,
Upendra Baxi,points out by reference to judgements
like those in the Monsan to (A.I.R. 1986 S.C. 712), even
where patents are revoked for want of subject matter,
the Indian system of granting stay orders results in giving
patents monopolies a life that they should never have had
in the first place,as the cases drag through our courts.
The real problem lies deeper. Very few countries have
done as much work and thinking about the law of patent as
India. At first, both our juristic thinking as well as
political thinking about this subject was imitative, drawing
inspiration from the English law and embarassed that our law
was not following "progressive" practice elsewhere in the
world. But, since the early sixties, we have looked at
these questions anew; and, sought to put them in a challenging
and interesting framework. Yet the law remains ineffective
in ways that in itiate against the public interest. Although
we have enabled cheaper food, drugs, medicine and chemicals,
they are still expensive. We have not been able to stop
foreign domination of the use of our patent law. Patent
remains a powerful instrument to construct monopolies; and
is relatively free from the operation of the monopolies and
restrictive practices law. (Sections 15, 36D', 37, 39 of. the
MRTP Act 1969). Yet, time and time again, we are called upon
to revise our conceptions in favour of 'a more liberal law,
more inclined to absolutist notions'of private property
and, ostensibly, protecting the creativity of the inventor.
The poor inventor, alas, in most cases remains relatively
poor. The real protagonists are the big companies who having already reaped up tax benefits for the R&D work of
their inadequately compensated employees - threaten to make
their research less available; and use their political
muscle to threaten financial and economic disaster. We
need to get back to our debate, seeking support from those
nations who are similarly placed. Instead, we' seem to be
getting ineluctably drawn into their debate; and, from
then on, into the inevitable monopolistic consequences that
follow.
]
OCCASIONAL PAPER NO.2
INDIAN PATENT LAW AND THE PARIS CONVENTION
DR.NITYA NAND
It is understood that a change in the existing Indian patent laws and
India's joining the Paris Convention is under active consideration of the
Government of India. Some articles favouring India's accession to the Paris
Convention have recently appeared in the Press (Times of India, 7th December,
1985). The present write-up makes an analysis of the provisions of the
Paris Convention and discusses the set backs. India's accession to the
Convention would cause, to the industry in general and the chemical and
drug industries in particular.
There is no getting away from the fact that the developed and
developing countries are "unequals" in industrial strength, and when the
present patent systems were designed to protect the interests of
industrialised countries it would be difficult to reconcile the interests
of both in the same- system.
International Convention for the Protection of Industrial Property or
Paris Convention, as it is popularly known was first signed in 1883 as a
multi-lateral treaty among 11 nations. Since then it has been revised
six times, the last being 1967 at Stockholm, each revision superseding the
earlier version. The Convention could attract in more than 100 years of
its existence a total of just 96 members and suprisingly, till date, has no
Preamble. It means, in simpler term, it has no explicit statement regarding
its objectives and does not contain at any place the importance of national
and consumer interest nor any specific statement beneficial to developing
countries in any way.
The convention has a total of 30 Articles and the Article 1 defines
the scope of Industrial Property. It includes all manufactured or natural
products and encompasses Patents of all types, viz. fresh, importation,
improvements, addition etq. It covers all spheres of industrial activity.
The status of industrial development of any country, developing or
developed, is always measured in terms of the strength of its indigenous
industry and not that of the multinationals operating in that country.
India's tenth position among the industrialized nations and UNIDO's
placement of India in the list of countries having a well developed drug
industry speaks well of the progress made by the indigenous national
sector of our drug industry. The era of rapid progress of Indian industries
in general, and of its chemical and drugs sector in particular, got greatly
accelerated after the enactment of the Indian Patents Act, 1970. This
single act of our Government put the Indian drug industry on the threshold
of self-reliance, removed our dependence on imports of drugs and encouraged
local industry to develop and strengthen its R <5c D base.
The strength of the Patents Act of 1970 are its favourable provisions
for compulsory licensing, automatic licences of rights, grant of process
patents only and reduction in period of protection to only 5 years after
sealing of the patent. All these will get nullified once we sign the convention.
The provisions of the convention are so heavily weighted in favour of foreign
patent holders that there are virtually no provisions regarding the obligations
of the patentee, concept of public interest and the rights of the state which
grants patents. Under Article 5 (and clauses, sub-clauses thereof) of the
Convention a patentee can avoid commercial production of its process for
a long period and monopolise import of the products as the provision of
compulsory licensing is rather weak and forfeiture almost impossible.
Article 5A(1) States explicity "Importation by the patentee into the coun try,
the articles patented in any of the Convention countries, shall not entail
forfeiture of the patent". This provision encourages importation of patented
product rather than taking up of the commercial production in the country of
patent grant. At no place the Convention requires compulsorily the working
of the patents. Furthermore, Article 5B states that the protection of indus trial designs shall not, under any circumstances, be subject to any forfeiture,
either by reason of failure to work or by reason of the importation. Article 5
alongwith its clauses and sub -clauses is so favourable to patentees that for
any developing country it is impossible to break the stranglehold of patentee
having vested interests. The provisions of this article leave no scope for any
indigenous industry to develop and operate.
The Convention is so much titled in favour of developed countries that
still almost half of the developing world is out of it. The accession to this
Convention does not end a developing country's, like India, isolation but makes
it recipient to the technology which the patentee wants to transfer and not
the one which the developing convention country wants. And the terms of
this transfer are also dictated by the patentee and not by the recipient. In
India's case not joining Convention has in no way deterred the flow of technology
even the sophisticated ones. The figures in this regard are explicit enough.
The number of collaborations for technology transfer have gone up from 183
in 1970 to 359 in 1974, 526 in 1980, 673 in 1983, 756 in 1984 and 1236 in 1985.
During the current financial year there has been a further increase in foreign
collaborations and that too from the most advanced countries USA and West
Germany. Thus this depends more on Government licensing rather than the
Convention. Many articles of the Paris Convention are amenable to different
interpretations and this will lead to unnecessary litigation and that too many
a time in the courts of other countries, which in turn, will lead to outflow of
scarce foreign exchange. Some such Articles (alongwith clauses, subclauses
thereof) are 4^,6,7,8,9,10,20,25,28, etc. Even our programmes for atomic
energy and power development will be jeopardised as we can be dragged into
international courts for infringement of some of the components used in
atomic power plants etc.
The interested parties are advancing the argument that a participating
country is obliged to apply its own laws to the inventions of the nationals
of other convention countries only with some minimum rules. What are
these so called, minimum rules ? Article 25 of the Convention states clearly
that the country joining the Convention will un dertake measures necessary
...3/
to ensure the application of this Convention. Moreover, sections ‘fS and 99
of the Indian Patents Act are not in harmony with Article 10 bis of the
Paris Convention which states that the countries signatory to the Convention
are bound to assure to the nationals of other member countries effective
protection against "unfair competition". It is feared, if India signs this
Convention most of the modern drugs available now will disappear from the
Indian markets as the foreign patent holder, on the basis of their priority
claims in their home countries (as applicable to all Convention countries)
will file cases in courts against the local manufacturers and stop production
by getting injunctions.
Application of Article 8 of the Convention which reads that a trade
name shall be protected in all the Convention countries without the necessity
of filing or registration whether or not it forms part of a trademark, read
with Article 4 which gives priority from the date on which the first appli cation in the home country was filed, will again lead to a chaos in drug
production as everry foreign patentee will start claiming priority of his
product based upon filing of the first application and would also bring their
own trade (brand) names
Joining the Convention, in no way, going to improve the technological
capabilities of our indigenous sector, these capabilities are already self evident. Our drug manufacturing units, through the liberal provisions of
Patents Act of 1970, are producing sophiaticated drugs of internationally
acceptable standards, e.g. nifedipine, hydrochlorthiazide, diloxamide furoate,
ethambutol, tinidazole rifampicin, all without the help of foreign technologies .
Moreover, many of our drug firms (national sector) have obtained Food and
Drugs Administration's approval for their manufacturing facilities and standards,
again without the help of any foreign technology. Such a situation, a flourishing
and committed national sector, would certainly not have been possible had
India joined the Paris Convention.
The crux of the matter is how India can achieve further Industrial growth
to meet its ever burdening domestic demand and create potential for export.
It hardly needs emphsis that to become industrially strong we have to be
self-reliant in technology and in resources both in terms of materials,
technologists and scientists. By joining the Convention we will only open
the flood-gates to foreign patent holders which would then start a chain
of litigation with indigenous firms. Articles 4,8,9 and 10 (some specific
clauses thereof) are few such ones, open to any vested interpretation.
Almost 98 per cent of the new (or first time) patents filed world over every
year are from the developed countries and just 1 per cent are from
developing countries. This will surely be a case of one-way traffic where
all the advantage would lie with the foreign patentees but with minimum
of risk. The convention gives reverse system of preferences for foreign
patent holders as against Indian Nationals.
How much fair the Paris Convention is to the developing countries
has been so well illustrated in the following para from UNCTAD's report on
"International Patent System." "Since its inception the Convention has grown
haphazardly. Neither at the time of its adoption nor during its six subsequent
revisions has the protection of specific interests of developing countries
found any reflec-tion in it.
The Convention itself lacks structural homogeneity: differences in the
types of members of the Convention and of its various Acts; differences
in the types of industrial property dealt with and in the possibility of
accession to one or another set of its articles. The asymmetry inherent
in its provisions-detailed obligation on countries versus feeble reference
to control of private monopolies for safeguarding public interest;
independence of patents with respect to countries but dependence of
countries with respect to patents; and speed of entry into the convention
contrasted with slowness of exit-work towards making the Convention
serve as an instrument of consolidating private rights of patentees without
ensuring equivalent obligations on them in public interests".
Patent system has been used by highly industrialized countries to
restrict the development of indigenous industry in the developing countries.
It was oh account of this consideration that Government of India took the
initiative of modifying its 1911 Patents law and the new Patents Act 1970
having reduced life span for patent protection, in the vital fields of
insectisides, pesticides, liberal provisions for compulsory licensing and
grant of process patent only for chemicals & drugs was enacted. Any change
in this set-up, as is being planned now, should be carefully considered with
all its implications.
The Government should not under the pressure of vested interests
go back on the modifications made in the old patent Act of 1911 and join
the Paris Convention. This will be a retrograde step and will have serious
repercussions on the national sector of the pharmaceutical and chemical
industries. Considering that it took almost 20 years of discussion and debate
in various forums before the 1970 Patent Act was enacted by the Parliament.
No change should be made without public debate and consultations with
scientists and technologists. It is the 1970 Patents Act which suits our
interest most and any deviation from it will benefit the vested interests
only. Once we accede to Paris Convention there will be no going back,
it will take a minimum of six years, to get out of it, by which time we would
have seen the end of many industries.
DR. NITYA' NAND
Former Director,
Central Drug Research Institute; and
Chairman,
National Working Group On Patent Laws
OCCASIONAL PAPER NO.3
RENEWED FOREIGN INTEREST IN PATENTS
THE REALITY AND ITS CONSEQUENCES
B.K. KEAYLA
International interest in the law and policy relating to patents
has
taken many forms. In the years leading up to the
Paris Convention (1883) till the 1960s, the focus of attention
was the Paris Convention for the Protection of Industrial
Property and its subsequent amendments in 1900, 1911, 1925,
1934, 1958 and 1967. Since the Paris Convention was avowedly
directed to creating import monopolies, for manufacturers
and industrialists seeking markets abroad (without requiring
them to manufacture in the country sought to be exploited
as a market), nations were exhorted to join the'Paris Con vention in an international spirit of good will and modernity.'
Since the early 1960's concerted effort was made by Less
Developed Countries (LDC) to re -examine the true basis of
this good will. This has led to a re -consideration of these
issues through the aegis of the United Nations and UNCTAD.
Meanwhile, the campaign for joining the Paris Convention
continues.
A much more aggressive initiative has been launched by
European, American and Japanese Communities in an important
submission made at the Uruguay Round of the General Agree ment on Trade and Tariffs (GATT). Supported by the Inte llectual Property Committee, (a coalition of 13 major U.S.
Corporations) the Union of Industrial and Employers Confede rations of Europe and the Japan federation of Economic
Organisations (KE1DANRAN), an overhaul of the law of Inter national Patent System has been proposed to
" eliminate trade distortions caused by
infringement of and other misappro priation of intellectual property".
Needless to say, the trade distortions and'consequential effects
created by the Patent System is not given any real consideration.
A brief note below outlines some of the implications of some
of the proposals.
I.
FOREIGN INTEREST
A.
The foreign interests for the developed countries are using
the forum of GATT negotiations to pressurise developing
countries including India to make substantive changes in
their existing Patent Laws.
B.
The U.S.A., European and Japanese Business Communities
contend that the Intellectual Property Protection available
in India and certain countties is inadequate and also in effective against infringements. Many of these countries
in their earlier stages of development either had none or
weak patent legislation.
C.
They demand that patentability should cover, without dis crimination, any new industrially applicable products and
processes.
They want this right to be so provided that others are
precluded from manufacture, use or sale of the patented
invention and patented process.
They also want :
20 years period for Patent life.
Patent not to be revoked .for non - working.
Where for justified legal, technical or commercial
reasons patent is not worked but importation is
authorised, the requirements of working of patent
should be treated as satisfied.
Reversal of burden of proof should be provided
for against infringements.
In short, exclusive reservation of markets is being demanded
for patented products/processes.
’II.
INDIAN PATENT SYSTEM
A.
The Indian Patent System was developed and enacted after
prolonged indepth study when it was found that the Patent
Holders were taking too much undue advantage of their
superior monopolistic position and charging very high prices
to gain enormous profits and keeping in view the needs for
faster economic development and growth. Our Patent Laws
ensure working of inventions and processes within a
reasonable time of 3 years.
3
B.
C
HI.
Our Patent System excludes certain categories of industrial
and other products vital for our economy :
(i)
Drugs & Medicines, Pesticides and Chemical Substances
(only processes are patentable)
(ii)
Atomic energy inventions ; and
(iii)
Agriculture & Horticulture Products.
Provisions of the Act have been designed in a balanced
manner to achieve the objective of working of the patents
by the Patentee or through Licencees (under Compulsory
Licensing or Licensing of. Right provisions).
INDIAN PATENT SYSTEM - COMPARABLE
Certain provisions, which are being objected to by foreign interests,
are not unique in our laws. Such provisions exist in the laws of
Switzerland, Japan, USSR, Spain and several other countries. An
analysis is given in the attached Statement.
„
ft
IV.
CONSEQUENCES IF THE INDIAN PATENT SYSTEM IS CHANGED
If process patent wherever applicable is
changed to product
patent; Compulsory Licensing becomes weak and unenforceable ;
Term of all the Patents get extended to 20 years, Reversal of
burden of proof is conceded etc.,
the consequences will be disastrous to Indian economy
in terms of :
(i)
our current research activity, due to our stage of
development and size of our businesses is mainly
directed to applied/process research. Such research
work will stop completely for new products and would
be applicable only for patent - expired old products
(after a lapse of 20 years).
'
(ii)
No new product would be introduced by Indian Companies
as is happening at present. Licensing of patented products
would be a pre - requisite which would be extremely diffi
cult, if not impossible.
(iii)
Dependence on imports (of not only raw materials but
also of finished products) would increase to a dispro portionately high level and' at exorbitant prices.
(iv)
Export activity would receive a major set-back, subs
tantially worsening the balance of payment position further
....4/
(v)
Monopolistic regimes will get established and competitive
forces would get totally eliminated. Products would be
available at unimaginably high prices.
INDIA'S ECONOMY WILL BE VULNERABLE TO THE DESIGNS OF
TECHNOLOGICALLY ADVANCED NATIONS.
B.K. KEAYLA
Convenor,
National Working Group
On Patent Laws.
ANALYSIS-PROVISIONS OF INDIAN PATENTS ACT 1970 ARE NOT EXCEPTIONAL
ASPECT
I.
11.
PRODUCTS EXCLUDED
FROM PATENTABILITY
PROCESS PATENT
PATENTS ACT OF OTHER COUNTRIES
INDIAN PATENTS ACT, 1970
- Food (Article of nourishment)
Food Products
Australia, China, Canada, Brazil, Japan,
Spain, Switzerland, Korea, GDR, Hungary,
Poland, USSR & many other countries.
- Medicine or drug
Pharmaceutical
products
Australia, Canada, China, Japan, Spain,
Switzerland, GDR, Hungary, Poland,
Turkey, Argentina, USSR, Brazil,
Pakistan & many other countries.
- Substances produced by
chemical processes
Chemical
Products
USSR, Brazil, Chile, China, Hungary,
Korea, Mexico, GDR, Spain.
- Method of Agriculture or
Horticulture.
- Process for Prophylactic or
treatment of human beings or
animals or plants.
- Products for protection of
preservation of plants.
Plant varities or
Austria, China, Canada, Brazil, Denmark,
kinds of animals
Finland, France, Sweden, Norway, UK,
or essential
Poland, Switzerland, USSR & many other
processes for obtaincountries.
ing plants or animals.
- Atomic Energy Inventions
Nuclear Materials,
Atomic Energy,
Atomic Weapons.
Japan, USA, China, Czechoslovakia,
GDR, Poland, Brazil, Romania.
- Substances used as food or
as medicine or drug (include
Insecticide, Weedicides etc.,
intermediates for producing
medicines, insecticides etc.)
Medicinal & Food
Products.
Bulgaria, Colombia, GDR, Hungary,
Turkey, Romania, Spain, Taiwan,
Uruguay, Venezuela, Australia, Mexico,
USSR & Canada.
- Substances produced by
Chemical processes.
Chemical Processes dr methods.
Germany, Austria, Brazil, Czechoslovakia
Hungary, Poland, Japan, Mexico,
Norway, USSR and Holand
III.
ASPECT
INDIAN PATENT ACT 1970
TERM OF THE
PATENT
For Food, Drugs and
Medicines & Chemical
Substances:
7 years from the
date of application
or 5 years from the
date of sealing of
patent.
For other patentable
products
19 years
OTHER COUNTRIES
5 years : For certain products/processes
Turkey, Argentina, Chile, China
Iran and Venezeula.
6 to 10 years : Turkey, Argentina, Chile, China,
Columbia, Egypt, Iran, Peru, Venezeula,
Yugoslavia, Cuba.
11 to 15 years: Italy, Japan, Bulgaria, Czechoslovakia,
Romania, USSR, Greece, Portugal, Spair
Turkey, Argentina, Brazil, China, Egypt,
Iran, Iraq, Korea, Mexico, Sri Lanka,
Uruguay, Malaysia, Thailand.
16 to 20 years : Spain, Israel, Austria, Canada, GDR,
France, Switzerland, U.K., U.S.A.,
FGR, Hungary, Philippines, Bangladesh
Pakistan, Singapore and certain other
countries.
IV.
Compulsory
Licensing
Compulsory licences granted after 3 years
if reasonable requirement of public interest
not satisfied about availability, reasonable
prices.
i) Similar provisions exit in Model Law prepared by
BIRPI predecessor of WIPO.
ii)
Even WIPO Document No.WIPO/IPL/BN/85/4 dt.
December 3, 1985 permit similar objectives.
3
ASPECT
OTHER COUNTRIES
INDIAN PATENT ACT, 1970
iii)
In Public interest, Government
may apply after 3 years, for suo moto
endorsement.
Other countries having similar provisions are:
England, Germany, France, Greece, Israel,
Switzerland, Czechoslovakia, Hungary, Ireland,
Italy, Japan, Luxembourg, Mexico, Newzealand,
Finland, Guatemala, Netherland, Pakistan,
Philippines, Sweden, USSR, Yugoslavia.
China, Malaysia, Pakistan, Philippines, Republic of
Korea, Singapore, Thailand, Australia, Canada,
USA, U.K., France.
V.
LICENSING OF
RIGHT
VI.
Deemed to have been endorsed after
LICENCE OF RIGHT
3 years due to non-working.
FOR MEDICINES,
DRUGS OR CHEMICAL
SUBSTANCES
VII.
REVOCATION
If first compulsory licence is not
worked in 2 years, order for revocation
issued within 1 year thereafter.
Australia, Austria, Brazil, Cyprus, Egypt, GDR,
Iraq, Ireland, Israel, Italy, Newzealand.
VIII.
REVERSAL OF
BURDEN OF PROOF
No provision
No Provision (i) Switzerland, Brazil, Czechoslovakia,
USSR. Sweden.
France (Minister's Orders), Newzealand, Cyprus.
(ii)
Under European Patent Convention.
OCCASIONAL PAPER NO.4
INDIAN PATENTS SYSTEM IS AN IMPORTANT
SUBJECT BEING RAISED AT DIFFERENT FORUM.
GOVERNMENT IS UNDER TREMENDOUS PRESSURE
FROM FOREIGN INTERESTS FOR MAKING
SUBSTANTIVE CHANGES.
IT WILL NOT BE IN OUR
NATIONAL INTEREST TO CHANGE ANY PROVISION
OF OUR PATENTS ACT 1970.
THE ATTACHED PRESS CUTTINGS ARE FOR
YOUR SPECIAL ATTENTION PLEASE.
CONVENOR
THE TRIBUNE, WEDNESDAY, NOVEMBER 2, 1988
Strangulating Indian R&D
UBLIC affirmation by the Prime Minister
that the import substitution effort in tech
nology has been •'one of the biggest mistakes” is
ominous. Coming in the midst of mounting
pressure and open arm twisting by the de
veloped countries, in particular the USA, via
the Uruguay' round of GATT negotiations in
which, together with trade in services, protec
tion of intellectual property has been inscribed
as the most pressing issue on the agenda, the
Prime Minister's stand, if not checked and
reversed, portends evil times of a grave nature
and serious dimensions for Indian research and
development (R&D) and tcchnologicaPprogress
Mr Rajiv Gandhi chose to deliver his dictum
on the technology policy and its aims in his
characteristically hectoring style on the occa
sion, ironically enough, of presenting the 1987
Shanti Swarup Bhatnagar awards to Indian
scientists. It is a pity that the Indian scientists
present on the occasion did not have an oppor
tunity to refute his extremely dangerous posi
tion on Indian technology and its tasks at the
present stage of India’s socio - economic de
velopment
But India's scientific community is greatly
disturbed at what are tending to be concerted
moves of comprador business and political
interests in India, foreign multinationals and
the governments of the developed countries to
derail Indian R&D and strangulate the effort
for achieving technological self-reliance to
break neo-colonial shackles on the country’s
socio-economic development process.
The Prime Minister's stand on the technology
policy and the reasoning behind it are strikingly
supportive of the mobilisation of forces by
multinational corporations for incorporating a
provision for the protection of intellectual
property rights under the GATT Charter. This
will be a powerful instrument for enforcing
what is called the Paris Convention on the
protection of patents, designs and trade marks
to cover not only industrial property; as origi
nally conceived, but all intellectual property on
a much broader basis.
Many developing countries, including India,
have refused so far to be a party to the Paris
Convention. This is for the very good reason
that under the Paris Convention indigenous
R&D would have little scope to develop, above
all by way of the import substitution route, and
help indigenous enterprise to engage in the
production of goods and services to satisfy the
domestic demand and even find export outlets.
India, after a great deal of tussle with multi
national corporations, which own 85 per cent of
the patents registered in the world, enacted in
1970 its own patent law. The essence of this law
is that it provides a solid and viable basis for the
Indian R&D to develop technologies for substi
tuting the import of patented products and
prevent their unhindered access to the Indian
market. It challenged the monopoly of foreign
business interests to import the patented pro-
P
by Balraj Mehta
ducts and gave a boost to the Indian R&D and
indigenous business enterprises to undertake
domestic production of similar products.
What the Indian patent law of 1970 actually
provides for are simple departures from the
patent system which the multinational corpora
tions and the developed countries want to
sanctify and enforce. It permits not only pro
duct patents which alone are allowed under the
Paris Convention but also process patents for
food, medicines, drugs and chemical subst
ances. Agricultural products and processes for
the treatment of human beings or animals are
not treated as inventions and are, therefore, not
patentable. Atomic energy inventions are also
not patentable under the Indian law.
As regards the period for patent protection,
the Indian Ihw provides fiVe to seven years for
food, medicine, drugs and chemical substances
and 14 years for other products. The law,
therefore, gives reasonable protection to those
who invest brains and money to invent new
products and processes. The charge of the
multinationals that it encourages imitators and
the production of counterfeit goods is totally
misplaced.
The real point about the working of the
Indian patent law is that it has helped to find
substitutes for imported goods and services by
R&D in India which has rightly concentrated its
efforts not on finding brand new products but
on finding new processes for undertaking
domestic production to substitute import of
goods and services produced abroad. This is due
to the compelling fact that discovery of brand
new products requires huge resources in skills
and money which a developing country lacks. In
the first stage of development, a developing
country must concentrate available resources to
achieve optimal results which come by way of
import substitution rather than new products.
By adopting the import substitution route,
Indian R&D has derived rich returns not only in
terms of foreign exchange savings but also by
ensuring for Indian consumers assured supplies
and reasonable prices. It has slashed the high
monopoly profits foreign goods could earliet
extract from the Indian market. This has been
most palpable in the case of pharmaceuticals
and food products. This also explains the fran
tic lobbying of international drug firms to drag
India into the Paris Convention on patents and
recover a profitable market for their products in
India.
Before the 1970 Patent Act of India came into
force, finished drugs and exotic processed foods
were protected for free entry and the consumer
was mulcted by their producers abroad in the
absence of any competition from domestic pro
ducers. This could go on under Paris Conven
tion for as long as 20 .years for each product.
After 1970, however, Indian R&D (having
developed cost - effective processes) has helped
the manufacture of a large number and range of
basic chemicals, drugs -and pesticides in India
These products arc being sold to the Indian
consumer at reasonable prices and even export
outlets on a competitive basis - quality wise
and price wise - are being found for them.
What the multinational corporations arc cla
mouring for is what they call "effective deter
rent to international trade in goods where there
is an infringement of intellectual property
rights". They are even demanding that for
patent protected products, the production of an
identical product should be prohibited. To this
end, they arc demanding that GATT should
ensure that national laws and procedures on
protection of intellectual property are in con
formity with the standard provisions of the
Paris Convention. If any country fails to fall in
line, the signatories to the intellectual property
right provision of GzXTT should lake concerted
action against it, including trade discrimination
and curbs on financial aid and technology
transfers.
What is being demanded, in (act, is that the
developing countries, among them India, should
join the Paris Convention and the GATT should
put in place sanctions to achieve that end.
It is rather disconcerting in this context that
with the policy of import liberalisation already
hitting hard the domestic production of a
variety of goods and services, above all the
strategic capital goods and machine - making
industries, and the opening of the Indian mar
ket for investment and marketing activities of
foreign capital generally and multinational cor
porations in particular, the Government has
initiated moves to review and revise the time tested official policy and position on the Paris
Convention on patents also. A committee, in
fact, has been already at work since early last
year for this purpose
Meanwhile, there arc disturbing indications
that the Government has been pushed to the
very brink of deciding in favour of joining the
Paris Convention on patents within the
framework of the GATT provision on the pro
tection of intellectual property It appears, as it
often happens in the management of public
affairs under the present political - power
dispensation, that only a nod from the Prime
Minister is awaited (or clinching the issue
The Prime Minister’s tirade against the tech
nology that is geared (or import substitution
may well be an advance notice that he has been
persuaded by the interested quarters and is now
ready to order a fall into the gilded trap of the
Paris Convention on patents and the GAT1
provision for protection of intellectual property
to strangulate the R&D effort and technology
self - reliance of India. The deadline for it is said
to be mid - December. The scientists and
technologists concerned'have to bestir them
selves immediately and raise strong and united
voice of protest to block this disastrous move
HINDUSTAN TIMES - 28.1O.S8
Patents law
Pressure by US
By R. Nair
NDIA'S scientific establishment tending the Sri for another threeas well as senior policy makers are year period from this year, pressure
apprehensive that Government on India began mounting US Trade
leaders may cave in to intense press Representative Michael Smith met
ure from the United States to Commerce Secretary A. N. Verma
change India's patents and licensing on July 30 and bluntly demanded
laws. Should India succumb to the that India introduce product patents
pressure, they warn, the long-term in certain areas. According to mi
effects to the nation could be far nutes of the meeting, Mr Smith
worse than signing the NPT because made it unambiguous that unless the
of its potential to affect every facet ‘product vs process' issue was re
solved to the satisfaction of the US,
of the economy.
The proposal has met with strong there would be quick retaliatory ac
opposition from the Law, Industry tion on the trade front. That was
and Science Ministries with Minister followed by a ‘Dear Rajiv’ letter
of State for Science and Technology from Mr Reagan himself that
K. R Narayanan reportedly addres warned that ihe twice-postponed
sing a letter to the Prime Minister visit of his Science Adviser, Dr Wildetailing the various ramifications Ham Graham would not go through,
of succumbing to the US pressure. apart from hinting at other sanc
Informed sources say he has warned tions. The letter caused some
that self-reliance and indigenous de- amount of flutter in the PM’s Office
vclopment.of science would be a cer and brought the External Affairs
tain casualty, the effects to be im Ministry into the picture. A ‘Dear
mediately felt in the pharmaceutical Ron’ letter was despatched which
industry. Mr Narayanan’s letter was seemed to be sympathetic to US
preceded by a four-page memoran concerns without making concrete
dum to Cabinet Secretary B G. De- promises. Although senior officers
shmukh from Industries Secretary' in Industry and Science ministries
Otima Bordia on similar lines. The blame the External Affairs men for
latest US proposals under the Scien diluting the Indian position, their
ce and Technology Initiative, she is role was apparently limited to seeing'
reported to have warned, is only the Graham visit came through.
another extension of the policy to Shortly before Dr Graham arrived
use cooperation in the field of STI to in Delhi, the US Embassy in Delhi
change our patent laws. If the US handed over a list of "talking
demands are to be accommodated, points" that even seemed to hint
it would call for a mandate to amend that India could hold out its assur
patent laws on a 'substantive and ances quietly. The issue need not
figure in the main communique but
fundamental scale.’
Essentially, the problem revolves could be addressed in side letters,
around process patents and product the Embassy suggested.
patents. Indian patent laws permit
Confusion among the Indian
only process patents for food, medi negotiating team caused by pressure
cine, drugs and chemicals. Limited from the PM’s office to evolve a via
product patents are available for media to accommodate the US con
seven and fourteen years duration cerns, has apparently led to India
for various categories while atomic conceding more than it intended to,
energy and living organisms cannot give away in the first place. A joint
be patented at all.
statement issued by the two sides on
US pressure on India to align its Oct. 5 says “India and the US agree
patent laws with its own began to consider the question of providing
shortly after Prime Minister Rajiv for protection and allocatidn on a
Gandhi and President Reagan mutually agreeable basis of any In
signed an agreement during Mr tellectual Property Rights arising
Gandhi’s 1985 visit to Washington out of the STI programme.
to extend for another three years the
Analysts point out that one
STI signed in 1982 by Mrs Indira
Gandhi with the US President. The reason why the US is so concerned
Committee of Secretaries met on 22 about enforcing industrial property
July 1986 and expressed itself for rights now more than ever is because
continuing with the present legisla of fears that its own exports to tradi
tion, pointing out that it might ham tional markets may be squeezed in
per the indigenous development of the future, for instance, as the Euro
technology if the patent laws were to pean Community attempts to liber
be changed. The view was repeated alise internal trade barriers and cre
when the Committee met again a ate a’ single market. On a similar
few months ago. The PM’s Science tact, the Omnibus Trade Bill passed
Advisory Council headed by Dr C. by the US Congress earlier this year
N. R. Rao met in June last year to is oriented towards pushing exports
discuss the issue and concluded that and gives the US greater leverage in
at no time had the Department of bilateral negotiations with countries
Science and Technology com such as India and China, although
plained that our patenting laws were officials claim that the US would still
inhibiting access to high technology. like to work within the overall
Consequently, "‘nothing should be framework of GATT. If India now
done to undermine the supremacy buckles down to the arm-twisting,
analysts believe, the loss would be of
of the Patents Act."
When, discussions began on ex the entire developing world.
I
ECONOMIC TIMES - 2ND NOVEMBER,
1988.
Continued US pressure on India
Patents law may be amended
By Oar Special Correspondent
NEW DELHI. Nov. 1.
Patents law may be an arcane subject
for most people, but Indo-US
diplomacy nearly reached a flashpoint
in the last two months on the subject
of patents.
Prime Minister Rajiv Gandhi and
President Ronald Reagan have ex
changed persona] letters on the sub
ject; the Indo-US Science and Tech
nology Initiative (STI) nearly got
called off in September, as a result of
the disagreement; and the US even
came close to the unprecedented step
of threatening trade sanctions against
India.
So far the government of India has
refused to buckle under pressure. But
some changes in India's patents law, to
overcome any specific legal dcficiencies that arc pointed out, are not ruled
Out.
The US offensive is part of its global
initiative on the subject of intellectual
property rights. In the Indian context,
it has mounted an attack on three
fronts:
★In the course of negotiating the
extension of the Science and Tech pressure was during the negotiations
nology Initiative (STI), first launched for extending STI for a fresh Lhree-year
when Mrs. Gandhi visited the US in term. Dr. William Graham, science
1982 and then renew’bd for three years adviser to President Reagan and the
US negotiator on the STI renewal.
in 1985;
★At the Uruguay Round nego postponed his visit to India thrice in
tiations of the General Agreement on what were seen as pressure tactics.
Tariffs and Trade (GATT), which are And in July, at a meeting between a
US trade representative and com
due for review soon at Montreal;
★And through pressure to sign the merce secretary A. N. ’Verma, the
controversial Paris Convention on prospect of trade sanctions was held
patents, which is overseen by the out indirectly, through a reference to
World Intellectual Property Organisa such action against Brazil (which has
no patents law).
tion (WIPO).
Indo-US discussion on the over-all When this loo failed to yield results.
subject of intellectual property rights President Reagan wrote a “Dear
dates back to Mr. Rajiv Gandhi’s visit Rajiv’’ letter which seemed to suggest
to the US in 1985. At that time the US that unless the US stand on patents
administration underlined its concern was accommodated, the STI was
about the fact that under Indian doomed. The letter also talked about
patents law, only processes were cov tl]e benefits of the hi-tech that the US
ered in key areas like pharmaceuticals w-as willing to offer.
and chemicals, and not products. Rajiv’s ’’Dear Ron” response was
Among other issues that have figured instant, and reflected the unanimous
in discussions on India’s patents law is view that had developed on the sub
the period for which patent protection ject within the Indian government.
is available.
As far back as July 1986. the commit
Till last month, the most active tee of secretaries had concluded afler
due deliberations that signing the Pans
Convention might jeopardise the in
digenous development of technology.
Last year, the Science Advisory- Coun-^
cil to the Pnmcx Minister in turn
concluded that nothing ought to be
done to undermine the supremacy of
the Indian patents law, and pointed
out that al no time had the department
of science and technology (DST) held
that the Indian stand on this issue had
prevented access to high technology
from abroad
At the height of the STI imbroglio,
the law ministry declared that patent
protection could not be a matter of
discussion between two sovereign na
tions. And the DST held that there was
no need for any significant changes in
the existing law.
The industry ministry (which is the
nodal ’ministry for patents) put its
view down in a detailed note which
talked of the conceptual and
philosophical differences between the
Indian and US patent laws.
The committee of secretaries met
Continued on page 4, col. 7
Indian olficials argue that they have
scored a clear victory on the STI issue.
Continued from page 1. col. 4
and that the intense US pressure w-as
successfully fought off. But they also.
again and reiterated its earlier stand.
recognise that the US is not about to
as did Mr K. R. Narayanan, minister
forget the issue, and that pressure will
of state for science and technology.
who pointed out that any change in be mounted afresh in other forums.
US diplomats in turn say that they see
India's position would damage the
domestic technological development the task of changing India’s stand on
the issue as a long-term process.
of the pharmaceutical industry.
The Indian pharmaceutical industry
The issue has already been joined in
has been in the forefront of the fight GATT, where India has argued that
to keep the Indian patent law un property rights cannot be discussed as
changed, even as the US drug industry it is not a trade-related issue. India and
mounts pressure on the US txl- Brazil have been leading the fight on
this issue in GATT, with a third ally
ministration.
At one stage the US government now being Thailand This could be
tried to ease its way through the STI come another major issue for the
dispute by suggesting that rather than developing countries, along the lines
lake a public stand on the subject, that the issue of trade in services
India could deal with it outside the became On that issue too. it was India
main communique on the STI re and Brazil which fought a determined
US offensive before a compromise was
newal.
But India refused to budge on its eventually worked out.
basic stand. And early last month. STI
Before STI and GATT, the main
was finally renewed Nevertheless, the pressure on India had been for signing
joint communique issued after STI the Pans Convention. Now this has
was renewed for a further three years become a relative sideshow, with the
stated in ambiguous terms: "India and US de-emphasising the issue in favour
the United States agree to consider the of pressing the issue on GATT. quality of providing for protection and
Nevertheless, a seminar is due to
allocation on a mutually agreeable take place later this montji in New
basis on any intellectual property Delhi, organised jointly by WIPO and
the Federation of Indian Chambers of
rights ansing out of the STI.”
Commerce and Industry (FICCI). A
counter-seminar wil be held around
the same time by the newly formed
National Working Group on Patent
Laws.
Patents law
IHPIAM
SATURDAY,
express
OCTOBER
22,
1988.
Patents: India under pressure from US
By R. SASANKAN
cine, drugs and chemicals.. This en- the first list would be ready by May Patents Act. some large industrial
Express News Service
ables the Indian companies io pro- 19§9
houses which have foreign cnllah.ujNEW DELHI, Oct 21 ducc any item in the international
The India scientific community, by tions feel that the Act could be
The Government is split over the market by modifying the process
and large, remains committed to the amended. These arc mostly mcmh i
question of amending the controver- The US Administration is asking for present Patents Act and feels that it of F1CCI.
sial Patents Act on the lines sug- introduction of product patents in all should not be amended It claims the
Industries in the pharm^ccatical
gested by the US Administration
fields to prevent what it calls “mter- support of Mr Sam Pitroda. the and chemical sectors arc panicks
A committee of secretaries in the national thievery ' The US also Prime Minister's technology adviser. They, along with a number ,>t other
hird week of /Xugust this year, de- wants a 20-year duration for the (Mr Pitroda could not be contacted organisations have formed .< ttafior.il
■ided against amending the Act But patents
as he was out of Delhi).
working group on patent laws under
low some of the senior officials oi
us Administration is putting
The Science Advisory Council to the chairmanship of Dr Nityan.ind.
he ministries concerned have tremendous pressure on the Govcrn- the Prime Minister, headed by Prof former director. Central Drug' Re-hanged their views. Even within the ment to amend the Patents Act to C N.R. Rao. director 'Indian Insti- search Institute The working group
iame ministry officials hold different protect its intellectual property tute of Science, has told the Govern- plans a national campaign to make
rights US embassy sources when ment that "nothing should be done to people aware of damages that could
. .ic Ministry of Industry ha< all contacted, told ENS that the Indian undermine the supremacy of the In- be caused if the Government decides
along been opposing any amendment Government had not yet agreed to dian Patents Act’ On the question to amend the Act on the lines vugto the Patents Act. In fact, it send in amend the Act, but it “seems to of India joining the Paris Convention gested by the US Government
its views in writing to the cabinet agree that this is a senous problem “ on intellectual property rights, the
secretary a lew months ago. But a They said there could be trade sane- council said. There is no need at the
Th® scientific community feels that
very senior official of the ministry tions if India is identified as one of present juncture to join it before
’n<^ian Government has already
now feels that "something should be those countries which provide the certain detailed studies arc com- g‘ven >n to the US demand bv making
^e issue a bilateral one. The joint
done ’ to meet the US demand least protection to US intellectual plcted"
Similar thoughts have emerged in property rights. Asked whether India
The Indian industry is also split statement issued by the two countries
other- ministries as well.
had already been identified as one over the issue. While industries in the on October 5 after extending the
Hie Indian Patent Act permits such country, the sources said the pharmaceutical, chemical and food Gandhi-Reagan, Science and lech
only process patents for food, medi- process of identification was on and sectors oppose any amendment to the
Continued on Page 9 Column 2 •_
Patents: India under pressure
Continued from Page 1 Column 8
nology Initiative says that "India and
the United States agree to consider
the question of providing for protec
tion and allocation on a mutually
agreeable basis of any intellectual
property rights arising out of the STI
programme".
A US delegation is expected here
in November-December to discuss
the question of intellectual property
rights in areas falling within the STI
programme The outcome of the
discussions can have broader implica
tions
An executive order issued by the
US President in April last year says
that the US Government should have
international science and technology
agreements only with those countries
which have policies to protect the US
intellectual property rights.
The United States is not keen on
India joining the Paris Convention on
intellectual property It wants the
Indian Patents Aft tn be amended on
certain lines to protect its intellectual
property rights
not licence their patented products to
The Indian patent system excludes them. Large-scale litigation will be
certain vital products such as agri initiated by foreign patent-holders
cultural products. But the US wants against the process developed by the
agricultural products to be included national companies Drug prices
in the patent system. The present Act would go up and drug exports, curallows the Government to force pro tently around Rs 300 crores and
duction of a patent failing which it growing at the rate of 40 per cent per
can give the patent to other com annum, will be adversely affected as
panies. The US wants this provision exports to countries who are mem
bers of the Paris Convention will be
to be scrapped
Those who oppose anv change in stalled, they contend
The Omnibus Trade and Competi
the Patents Act Tee) that faster indus
trialisation had been possible due to tiveness Act 1988. passed by the US
the pragmatic provisions of the Act. Government, requires the US trade
In particular, it has helped the coun representatives to identify countries
try to produce chemical-based pro that deny protection lor US patents
ducts, pharmaceuticals, and agro and copyrights It is now clear that
chemicals at comparatively cheaper the US administration is holding out
the threat of trade sanctions to force
prices.
Their contention is that the process India to amend the Patents Act.
US officials are on record as saying
of industrialisation will be hampered
if India amends the Patent Act or that the Indian Patents Act does not
joins -the Paris Convention The protect the US intellectual property
growth of the national sector of the rights. They forced Brazil to do it by
industry will be set back by 10-15 cutting down imports of coffee from
years as foreign patent holders will that country.
INDIAN EXPRESS: !'•' few DELHI, Monday, July 25, 1988
India and Paris Convention
Govt may succumb to pressure
but he was not aware of any decision. anyone can apply to the controller.
He declined to give his views on the alleging that the reasonable require
subject saying he would reserve them ment of public interest had not been
satisfied and that the product was not
NEW DELHI. July 24 for the Government.
available at reasonable price The
The Indian Government is under
The Paris Convention on Industrial controller, if satisfied, can order the
renewed pressure from industrialised
countries and the World Intellectual Property 1883 provides for effective patentee to grant a licence The
Property Organisation (WIPO), a protection to patented products. The controller can'also revoke the patent
UN affiliate, to join the Paris Con Indian Patent Act. 1970, protects on the ground of public interest if the
only process patent, and not product patent is not worked within two years
vention on patent law.
There is a fear among Indian in patent in pharmaceutical and chemic of endorsement of compulsory li
dustry and the scientific community al industries. This enables Indian cence.
that the Rajiv Gandhi Government. companies to manufacture any pro
in its anxiety to obtain the latest duct by developing their own proces
Once a country joins the Pans
technology, may agree to join the ses. For instance, Glaxo, a leading Convention, it will not be able come
Paris Convention. The industrialised pharmaceutical company, introduced out of it before six years. Of the 97
countries, particularly the United into Indian market Ranitidine, an members, only 77 members had
States, have been insisting that trans anti-ulcer product about three years signed the latest convention, that is
fer of sophisticated technology to ago. This is now being manufactured the Stockholm Convention of 1967.
India will not be possible unless India by a number of Indian companies Of the remaining 20 members, nine
have signed the Lisbon Convention.
honours the rules regarding intellec through their own processes.
The Paris Convention has 97 mem 1958, nine the London Convention of
tual property rights.
The Scientific Advisory Council to bers. According to Indian industry. 1934 and two the Heague Convention
the Prime Minister is understood to the most retrograde provision in the of 1925. There are as many as 62
be the latest body to oppose the Convention is the Right of Priority. members who belong to developing
proposal to join the Paris Conven This article provides that if a com countries most .of whom had no
tion. Officially, there is no indication pany registers a patent on a particular industrial base when they joined the
as yet that the Government has re day. that date will be the priority date Pans Convention
According to the latest estimate, as,
lented in its opposition to the Paris for all member countries. Put dif
Convention. However, there is a ferently. any subsequent registration many as 37 countries are without any
feeling among Indian scientists that can be invalidated through the Right industrial base. Furthermore, there
Mr Sam Pilroda. Prime Minister's of Priority by the original patentee. arc 22 members who are signatories
technology adviser v/ho had himself This will enable the patentee to enjoy to the Convention but their domestic
laws provide that drugs and phar
patented a few electronics products a monopoly in the market.
The Indian Patent Act. it is maceutical products arc non-patent
m the US. may be able to influence
the Government when the issue com claimed, strikes a balance between able. If India joins the convention it
es up for discussion in coming the interests of the inventor and will have to extend these rights to all
months.
those of the consumer to ensure that members without the matching recip
Mr Pitroda, contacted by this cor the benefits of new technological rocity.
The Indian subsidiaries of trans
respondent, said he had not yet been development reach the consumer as
consulted on the issue. He said there fast as possible. It also provides for national corporations, particularly
were some discussions at the Govern compulsory licensing. Three years the drug companies, have bten
ment level about three months ago from the date of sealing of a patent. pleading that India should join the
fir R. SASANlCVs
Express News Service
Paris Convention.. But the Indian
drug sector has been vehemently
opposing it. Ils argument is that the
process patent has already helped the
national drug and pharmaceutical
sector to develop technologies of a
large number of basic drugs and
produce them on commercial scale
and at competitive prices. In fact.
many Indian companies export a
number of bulk drugs to developing
and developed countries. Some of
these products have been patented
cslcwhcrc by multinational -com
panies who are members of the Paris
Convention.
Il is pointed out that if India
decides to join the Pans Convention
it will have to modify its present
Patent Act. According to the Paris
Convention, the protection of intel
lectual property and rights of the
patentees have supremacy over the
interests of any country or its people.
Legal opinion in India too has been
opposed to India joining the Covention
The country's leading scientists
have also warned the Government
that joiniog the Paris Convention
would cripple research and develop
ment not only in drug industry but
also in bio-technology
The Government is expected to
take-up the issue after the forthcom
ing scm'oar on Patent Law and Paris
'Convcnton jointly being sponsored
by F1CCI. the International Cham
ber of Commerce and WIPO. It is
scheduled to be held in Delhi in
November.
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.
Position: 597 (7 views)