Patently bad drafting

-- The debate over a strong patents legislation has been characterised by sharply polarised positions. The arguments have been repeated ad nauseam since the Uruguay Round agreements entered into force on 1 January 1995 -- even earlier, when trips (trade-related aspects of intellectual property rights) entered the General Agreement on Trade and Tariffs as a negotiating issue in 1986. The debate usually centres on pharmaceuticals, but also has implications for agriculture.

Intellectual Property Rights (ipr) implies limited monopoly for the rights' holders -- the seriousness of this measure depends on the availability of substitutes, fresh investments in research and policy measures designed to control the impact of the monopoly. Every country does a trade-off between what economists call short-term and long-term goals. The former is meant to keep prices in check, while the objective of the latter is to ensure that ipr provides incentive for research and development.

Cut and paste However, the country's trade-off choices are now constrained by the World Trade Organization's trips agreement. The Indian Patents Act, 1970 required whole scale changes thanks to trips. This amendment was enacted in March 2005. But despite a fairly knowledgeable debate on the issue, we haven't resolved our internal trade-off between short-term and long-term efficiency goals.

Had we been able to do so, the 1970 act wouldn't have been amended by tagging a few sections on to it -- and deleting some others. We would have redrafted a new patents act. But that has not been done. As a result, there is no consistency between sections of the 1970 act that have been left untouched and those that have been amended or added. We have brushed aside problems by hoping that subsequent rules will remedy matters. The non-mention of traditional knowledge is one example of this lackadaisical attitude.

Let us consider another example. What can be patented? The trip s agreement tells us that a patentable subject must be "new, involve an inventive step and be capable of industrial application". It's common knowledge that "an inventive step" is synonymous with non-obvious, while "capable of industrial application" means useful. Contrast this with the language of the amended Patents Act: "Inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art". The clause, "not being obvious to a person skilled in the art", is the standard definition of inventive step. But why muddy the waters by introducing terms such as "technical advance"? And what's the purpose of the expression "economic significance". Terms such as these only increase the scope for litigation, including that on trip s-compatibility of the definition.

More confusion The act has a separate definition for "new invention". Semantically, that seems to be a contradiction in terms. According to the act, "New invention means any invention or technology which has not been anticipated by publication in any document or used... in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art." The intention is clear. We want to prevent patents on not only what has been published elsewhere in the world, but also that which has been technologically used. But that predicament could have been taken care of by defining "invention" in a more apposite manner, instead of introducing a fresh term

It's clear that the act is badly drafted. We had known our obligation to change the patents act since 1995, at least. So there was enough time to do better.

Bibek Debroy is director, Rajiv Gandhi Foundation, New Delhi