INTRODUCTION
The Indian jurisprudence concerning the regulation of patents has undergone a paradigm shift post India’s adaptation and incorporation of World Trade organization’s TRIPS Agreement also known as Agreement on Trade – Related Aspects of Intellectual Property Rights. Coming into force on the 1st Day of 1995, the broad aim and purpose of TRIPS lies in stating down the standards and means in order to use and enforce the trade related aspects of the Intellectual Property regime.
Post introduction of TRIPS, a minimum standard of protection of patents was introduced by the World Trade Organization wherein a period of 20 years was also stipulated for protection of patents in the Indian regime. Due to the introduction of TRIPS, India was compelled to amend the patent laws of the country with a set standard of protection for patents along with removal of various barriers through the Patent Act of 2005 which phenomenally impacted various sectors of the economy such as the generic medicine sector.
The Liberalization, Globalization and Privatization policy of India post 1991 reforms also introduced the Indian market to a new set of opportunities along with a fair share of obstacles relating to threat of infringement to Indian Intellectual property and traditional knowledge that has not been patented yet but has been customarily passed on from generation to generation since ages.
INDIAN INTELLECTUAL PROPERTY LAW AND ITS COMPLIANCE WITH TRIPS
The Indian involvement in TRIPS agreement of the World Trade Organization began in the year 1995 when it became a part of the World Trade Organization and ratified all the agreements related to trade and intellectual property.
However, there were various challenges posed to the Indian ratification to the treaty due to the Indian economy being of a developing nature which could not strictly compete with the stringent terms of WTO which were applicable uniformly to the developed as well as developing nations. Subsequently, in order to meet the demand of the Indian players in the global market scenario, various municipal and domestic legislations were introduced such as Patents Act, 1970 along with amendments that followed in the years 1999, 2002 and 2005 respectively.
In the Post – TRIPS adoption regime of India, the country was surrounded by two stringent issues which were as follows:
a. The means to facilitate various application relating to pharmaceutical and agricultural chemical products was absent and required high amount of deliberation and development. This was also called as “Mailbox Facility” .
b. There was completely no presence of “Exclusive Marketing Rights” available to Indian producers which could help them to secure their own interests in the domestic and international market.
The Patents Amendment Act of 2002 acted in a phenomenal manner to amend and bring about positive changes which were able to cater the needs of Indian domestic producers and all those who required to secure their intellectual property rights such as patents. The changes brought forth by the Amendment were as follows:
a. A term of 20 years was introduced in consonance with Article 33 of the TRIPS agreement to protect patents from any infringement. This also updated the previous limit of 14 years which enhanced the security of domestic players in the Indian markets.
b. The 2002 act also brought out a specific definition of patentable subject matter which broadened the scope of what could be patented under the act. The definition has been drawn up as both inclusive and exclusive wherein numerous inventions or developments which were contrary to the general interest of public and morality which could cause a heavy prejudice to humans, plants and biodiversity were excused from being patented under the act.
c. Traditional knowledge was also included in the ambit of patentability and the Biodiversity Act was also drawn up in the year 2002 which enabled Indians to patent their traditional knowledge in form of Biological Diversity and Traditional Knowledge registers.
d. A compulsory licensing framework was also imposed through the 2002 act in compliance with the WTO framework wherein a third party was supposed to mandatorily take licenses from the government in order to taken in use an invention which has already been patented and the consent of the patent holder has not been taken.
JUDICIAL INTERPRETATIONS IN LINE WITH TRIPS AGREEMENT
The Hon’ble Supreme Court of India along with various other courts throughout the country have tried to develop the law relating to patents in the country and develop it in a manner which acts in consonance and not in deviation of the TRIPS agreement. There are various judgments stating the same which are as follows:
Novartis AG v/s Union of India – This judgment was the first to establish a proper connect between the municipal patent law of India with the international patent regime through TRIPS. In this case, various sections of the Patent Act of 1970 were claimed to be in conflict with the TRIPS according to the petitioner. The courts held that it could not interfere with the laws made by the parliament and therefore, the parliament of the country is best aware of the needs of the people in the country.
The courts also noted that even though the compliance with the TRIPS agreement is compulsory for the nations ratifying it, the parliament has enough discretion to consider the laws best for the citizens of the country and can make laws to uphold the benefit of the country.
State of Andhra Pradesh v/s Mc Dowell & Co – In this case, the Novartis judgment was upheld and reiterated along with positive additions. The court noted that the built in measures of the act needed to be followed even though they deviate from the international standard.
The court also clarified that since the domestic law of patents in India in forms of the Patents act of 1970 is the settled law in India, the TRIPS only holds a secondary and persuasive value and therefore the courts cannot be bound to follow it.
CONCLUSION AND WAY FORWARD
Through continuous and comprehensive amendments in the domestic patent laws of India, the country has started to become increasingly TRIPS – complaint. The congruence between the Indian Patents Act and TRIPS has been successively increased wherein the Indian players and market has started to reap positive benefits in form of competition and increased advent of patent law practitioners who ensure that infringement to any intellectual property does not take place either in India or globally.
In the decision of Novartis , another benefit of TRIPS has been laid down for the domestic law wherein the courts have allowed a permissible limit of flexibility and discretion while framing domestic policies of the country so that country’s social and economic factors are taken due care of.
However, there are various other challenges being faced by Indian markets such as procedural hindrances and pre – patented ideas and inventions of India which have been subject to pilferage by the western players. The domestic law should be strengthened in such a manner that it does not remain a toothless tiger while combating such issues.