The evolution of patent system in India
is not a natural choice of independent India unlike the drive towards investing
in research and development, import substitution, indigenous development of know-how
and adaptation of technology. India has had its patent law since 1856 and
continues to have it after independence with due amendments from time to time.
Inventions are not necessarily dependent on existence of a patent law, although
the patent law is certainly a big contributing factor in promoting inventions
which can lead to innovations.
Innovations are inventions plus, and
generally understood to be in terms of products or processes which are
successful in the market or have the potential to be successful. An invention
needs to be followed by many more steps such as scale up, prototyping, testing,
characterization, and safety studies to meet regulatory requirements and
standards etc. These steps have to be followed by effective manufacturing and
marketing to remain competitive.
The Indian patent law is compatible
with TRIPS and takes care of essential features of an invention namely novelty,
inventiveness and utility. In its philosophy and character, it is no different
from patent laws of other countries. The growth in patent filing by Indian
residents in the post WTO period is testimony to the fact that inventive
activities have grown primarily due to larger awareness and better
understanding of ever increasing competition. A study by the author reveals
that 16% of MSME drug companies have been filing patent applications in the
last ten years.
The Indian law is very sensitive to the
inventiveness aspect and therefore has stipulated that some inventions are not
patentable in India. The laws of many countries do not spell out such
exclusions but do attach importance to inventiveness or non-obviousness. For
example, rearrangement of known devices or components not leading to a new
effect is not patentable in India. The same concept was followed by the US
Supreme Court in deciding the KSR v Teleflex case.
It must be remembered that the patent
law has a strong element of public policy as it gives exclusive and
monopolistic rights to an individual or a company for exploiting inventions
while denying / limiting the remaining population the right to use and practise
the invention.
The Section 3(d), perhaps more commonly
applied to drugs as it talks of efficacy, is an example of ensuring
inventiveness in inventions dealing with drugs and chemicals, and balancing
with public policy is achieved in most cases. The law has however, not provided
any direction towards interpretation of efficacy and left it to competent
authorities like the Patent Office, Intellectual Property Appellate Board and
courts. This needs to be looked into as efficacy is linked with scientific and
technical aspects and a common rule may not applicable to all cases.
The provisions of compulsory licensing
and working of patents are meant to avoid misuse of patents by the patent
holder in specific situations. These provisions are, prima facie, not anti-
inventions or anti-innovation. A company aspiring to get a patent in India
should take into consideration these aspects, because they may affect its
business prospects in very specific cases. However, a high degree of
judiciousness based on reliable data and analysis of social and market
aspects is called for while arriving at
the decision of awarding compulsory license.
The
process of patent granting in India takes a little longer and that has been a
cause of concern for inventors and companies, especially MSME. Whether the law
should stipulate stricter timelines is a matter for consideration by the
competent authority. This is an operational aspect and does not in any way affect
the intrinsic character of the law. Like any other patent law, the Indian
patent law promotes and nurtures inventions; there is no evidence to conclude
otherwise. If the level of inventive activities which the patent system
protects, has not grown in the manner expected by us, the answers may lie
elsewhere.
(This article appeared in Express Pharma, November 1-15, 2012 under the title "Law has a strong element of public policy")
©
R Saha
Previous : Challenges faced by the Indian IPR System