Snehil Sharma
It is an undeniable fact that innovation plays a vital role towards the overall economic growth and enhanced welfare of society. Such innovation is not required to be technical in nature specifically. It can be broadly understood that innovation is the development of newer concepts and ideas along with creating any association amongst the concepts and ideas.
It is pertinent to note that IPR (Intellectual Property Rights) has played a crucial role towards the promotion and protection of growth and innovation. Patent protection basically provides an incentive towards production of newer inventions and eventually encourages further improvements on innovations.
It is perceived that the technological advancement of any country is amongst those forces which propels it towards monetary prosperity. Such technological advancement can be properly promoted as well as protected through regime of strict patents.[1]
What is Patent?
Any patent is basically a property right which is provided by the sovereign issuing authority to the inventor of such patent. This exclusive property right inhibits the process, invention and design for a specific period which is designated and is a form of right which is incorporeal in nature. The government agencies are responsible for the handling and approval of applications concerning the patents[2].
Therefore, patent can be understood as exclusive right provided to any specific product or the process which is generally a new method to do something or is offering a distinct technical solution for any problem. In order to seek patent protection, the inventor is supposed to disclose the technical information regarding the invention to the public[3].
Historical Evolution of Patents in India
The historical background of Indian Patent law can be traced back to the year 1911 when the enactment of Indian Patent and Design Act of 1911 took place. The Act of 1911 had its focal point towards bringing administration of patent within the purview of Controller of Patents for the first time ever.
During the post-independence era, it was eventually realized that the Act of 1911 was not able to meet the objectives for which it was enacted. The need for enacting a substantial patent law was highlighted due to the substantial changes in the conditions which were taking place politically as well as economically.
Hence, the Indian Government constituted a committee in the year 1949 which was headed the retired Judge of Lahore HC Justice Bakshi Tek Chand. The committee was supposed to review the legal framework of patents for achieving a conducive patent system within the country.[4]
The Patent Act of 1970 was brought into force in the year 1972 which amended and consolidated all the existing Indian laws of that time concerning the patents. However, the Act of 1970 was amended through the Patents (Amendments) Act of 2005, within which, the product patentability was further extended to a broader fields of technologies which was inclusive of drugs, foods, chemicals, microorganisms etc. The first and true inventor or his assignee can file the application for patent, either in alone or in the joint manner.[5]
TRIPS & WIPO
During the Uruguay round of GATT, the focal view was brought upon the IPR. TRIPS agreement came into existence with India being a party to it. However, India was considered a developing country and a time frame till 1st Jan, 2005 was provided for establishment of basic standards regarding IP protection in compliance with TRIPS agreement within the country.
India also became a member of the WIPO (World Intellectual Property Organization), which is a body working towards promoting IPR protection globally.
India holds membership in various International treaties & conventions concerning IPR which is administered by the WIPO. The WIPO has proposed a concept of delegation of patents which has been one of the most discussed proposal concerning the global IP regulations[6].
Delegation of Patents
The PCT (Patent Cooperation Treaty) is an international treaty for patent law which comes under the purview of WIPO. This treaty offers a unified method for the filing applications for patents in order to safeguard the inventions which take place within the contracting nations.
To begin with the complexities and the debates revolving around the delegation of patents, it is first important to understand what it means.
The idea is to introduce a new rule, Rule 50b is in the PCT Regulations that would undermine the countries’ flexibility, which has been provided by TRIPS for the purposes of granting patents along with impacting their scope of providing patents.
Meaning:
PCT allows the individual innovators to seek patent protection in multiple countries through a single application of patent in any country amongst the 152 member countries of WIPO. However, it still prohibits them from escaping the specific scrutiny process of patent application of any specific country.
The proposal of WIPO regarding delegation is basically permitting the nations towards outsourcing their own duties of patent examination to other nations. The proposal for amendment of PCT regulations provides permission to delegate the scrutiny rights of patent application and was considered by the working group meeting of the WIPO PCT which was held in Geneva.
The consequence of such proposal will be that scrutiny of application shall be determined by the criteria of delegated patent office.
As per Article 45(1) of PCT, a State is allowed to “close the national route” in instances where it is a party of the Regional Patent Treaty. There is an absence of any express provision that allows a non-member State of the regional patent treaty to “close its national route”.
Technical Aspects of Patent Delegation:
Countries are allowed to tweak their legal framework concerning patents towards innovations which are substantive and real as per TRIPS agreement.
The national authorities and offices of patents are responsible for the interpretation of law of the land. The attempt of WIPO will eventually delegate that specific right of national patent offices to the offices of any other member country.
As per this proposal which is under consideration the delegated office of patent will be assuming each and every rights & obligations of the national patent office of the contracting country and will be responsible to perform such functions which are delegated in compliance with the regulations laid down by PCT[7].
Spheres where Patent Delegation can be used:
It is to be noted that as opposed by India on the behalf of many other developing countries, as shall also be explained further in this article, the delegation of patent might cause significant changes in the sphere of “healthcare” as a greater number of medicines will then be able to get patented in spite of conflicting laws present for them in regards to the authority given to the developing countries.
The best example regarding same is that Indian companies provided generic drugs of expensive AIDS/HIV medicines at a fraction of actual cost to African countries as they were not able to afford the cost of patented medicines.
The Indian legal framework concerning patent prohibits enhanced improvements of known substances. The same was re-iterated by the Novartis Case[8] by highlighting the importance of Section 3(d) which states as to what cannot be patented.
Supreme Court in this case, stated that “ever greening of patented products” needs to be prevented in order to further prevent the sale of useful medicinal drugs at exorbitantly high rates by companies who get them patented.
This has always been objected by the developed countries. India has always been facing immense pressure by the pharmaceutical companies globally who are willing to obtain exclusive rights of marketing their products through gaining IPR protection on enhanced improvements of existing drugs.
Possible atrocities that Developing Countries might face:
Developing countries have been granted the authority to put into place such rigorous patent schemes that help in reducing the grant of patents to naturally occurring substances like microorganisms, plants, genes, seeds.
This is done with the view to bar the unnecessary grant of patents that would restrict the entry of not very expensive medicines in the markets of the developing countries.
However, if the delegation is put into play, the same comes to work at a level that would rather succumb to the practices of countries that are not granted these authorities and thus the aim of achieving the restriction of unnecessary patents would be tarnished.
Additionally, if such delegation is approved for implementation it will eventually erode the flexibilities which have been provided by TRIPS agreement which allows the adoption of distinct patent standards for those countries which are least developed or developing.
The same would fall to be contradictory to the UN-Secretary General’s report in the year 2016, which itself gave paramount importance to strengthening the capacity of patent examiners to apply more strictly, “health sensitive patentability criteria”.
Indian Response towards the delegation
India will most likely be opposing the proposal which has been brought forward regarding the delegation of patents. The reason behind such opposition is that such delegation will eventually erode India’s capabilities to provide cheaper and generic versions of medical products to other countries[9].
Adoption of the proposed changes into the patentability framework will create a higher impact upon those countries which are still developing or least developed and India is also amongst the developing countries. Hence, the delegation of patent scrutiny power will create hindrances for the domestic industries of India.
Conclusion
Patent holds capabilities for adding higher values and enhanced returns to individuals as well as companies upon investments which has been made towards the development of new technologies.
Patents shall be provided in such an intelligent manner that it shall result in alignment of business interests towards technology implementation coupled with wide range of other options while searching when, where and how to patent.
The appropriate national patent authority will eventually provide greater outcomes towards the economic growth and development of society if it is functioning to the best of its capability and is performing its duties of scrutinizing patents. Hence, if such duties are outsourced to any other countries it will surely have an impact upon the domestic innovations industry.
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All Answers Ltd. November 2018. Patents and Innovation. [online]. Available from: https://www.lawteacher.net/free-law-essays/copyright-law/patents-and-innovation.php?vref=1. ↑
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Will Kenton, 2020. How Patents Work and Notable Patents That Changed How We Live. [online] Investopedia. Available at: <https://www.investopedia.com/terms/p/patent.asp>. ↑
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Vijay Pal Dalmia, 2020. Patent Law in India – Everything You Must Know – Intellectual Property – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/patent/403564/patent-law-in-india–everything-you-must-know>. ↑
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Joe Mathew, 2020. WIPO Plans to Allow Member Nations To Delegate Patent Scrutiny Powers. [online] Businesstoday.in. Available at: <https://www.businesstoday.in/current/policy/wipo-plans-to-allow-member-nations-to-delegate-patent-scrutiny-powers/story/279350.html> [Accessed 29 July 2020]. ↑
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Civil Appeal No. 2706-2716 of 2013
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Id. ↑