A fine balance

The bill keeps national interests intact and remains TRIPS compliant

By Gopakumar
Published: Saturday 15 June 2002

A fine balance

India can really get going when it needs to, even in the midst of troubled times both inside and outside. This was proved last week by the smooth passage of the Patents (Second Amendment) Bill through both houses of Parliament. Some amendments were accepted, others were discussed and clarified in the House.

All said and done, this is the best thing that could have happened for the Indian industry, post-World Trade Organisation (wto) /Agreement on trips (Trade Related Aspects of Intellectual Property Rights). Having ratified both, as founder-member, India had the obligation to make Indian patent law trips-compliant.

The First Amendment (Act 17 of 1999, with effect from January 1, 1995) provided for emr (exclusive marketing rights) in compliance of Article 70.8 of trips' transitional arrangements. Even here, before the bill was passed, the government took care to add, "not including an article or substance based on the system of Indian medicine as defined in section 2(1)(e) of the Indian Medicine Central Council Act, 1970 (48 of 1970) and where such article or substance is already in public domain".

Similar wisdom was evidently visible in the drafting (and last minute amending) of the second amendments.

Traditional knowledge has been excluded from patentability by adding a new sub-section (p) under section 3 (what is not patentable). Microorganisms are now made patentable (as required under trips). The ambiguities in definitions (or lack of them) could work both ways in microbiological patenting. While patent term has been extended to 20 years uniformly without discrimination in the field of technology (earlier a lower term was applicable for process patents on food, drugs and medicines), product patenting "per se", was postponed to the Third Amendment Bill to be introduced prior to January 1, 2005 (emrs become product patents post-2005 or post third amendment). Even unexpired patents (live currently) will have extended life for 20 years.

A majority of the amendments moved on the floor of the House were to further liberalise (smoothen) compulsory licensing procedures. An amendment to give effect to the Doha Declaration was also officially incorporated. Procedure to deal with grant of licence -- in a national emergency, extreme urgency or public non-commercial use, which may arise or may be required, as the case may be, due to a public health crisis -- is laid out in section 87. This includes procedures relating to Acquired Immuno Deficiency Syndrome (aids) and Human Immuno Virus (hiv). This is very aptly and wisely done. Of course, the quantum of royalty to be paid is left open to negotiation. However, this is further qualified with "not more than adequate remuneration" in the circumstances of each case, taking into account the economic value of the use of the patent.

In short, the bill has by and large, kept national interests intact, using flexibilities built into trips. At the same time, it does manage to keep the bill trips compliant. This is indeed a fine 'balancing act'.

There is an interesting and welcome side-effect -- of course an intended one. The simple addition of "per se" to the section 3(k), "a mathematical or business method or a computer program 'per se' or a logarithms", has opened up immense opportunities for intellectual property rights vis-a-vis the Indian software industry. It is quite likely that this will spark off a flurry of activities in the software arena.

By and large, a commendable effort, after prolonged study, debates, interactions and close unanimity in Parliament, which are hardly easy to come by these days. There are some dissident notes, but at least we now have something hard and tangible (about intangibles) to comment upon.

Gopakumar G Nair is chairperson of the intellectual property rights sub-committee of the Indian Drug Manufacturers' Association

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