Science and Technology
Trade
Representative (USTR) aforesaid in a report released last month that India was
one of the foremost challenging major economies as far as ip protection and
enforcement is concerned.
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It has decided to retain India on its
Priority Watch List along with six other countries —Argentina, Chile, China,
Indonesia, Russia and Venezuela.
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Among the
issues raised in the report are India’s inconsistencies regarding patent
protection, including concerns regarding what can be patented, waiting time for
obtaining patents, burdensome reporting requirements, and doubts
about data safety.
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The Indian patent regime a patent is an
exclusive set of rights granted for an invention, which may be a product or
process that provides a new way of doing something or offers a new technical
solution to a problem.
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Indian
patents are the governed by the Indian Patent Act of 1970.
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India became a party to the Trade Related
Aspects of Intellectual Property Rights (TRIPS) Agreement following its
membership to the World Trade Organization on January 1, 1995.
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India is also a signatory to several IPR
related conventions, including the Berne Convention, which governs copyright,
the Budapest Treaty, the Paris Convention for the Protection of Industrial
Property, and the Patent Cooperation Treaty (PCT), all of which govern various
patent related matters.
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An interesting point is that the original
Indian Patents Act did not grant patent protection to pharmaceutical products
to ensure that medicines were available at a low price.
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Patent protection of pharmaceuticals were
re-introduced after the 2005 amendment to comply with TRIPS.
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Article 3(d) of the Indian Patent Act One
of the main points of contention between India and the U.S.
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It has been Article 3(d) of the Indian
Patent Act.
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Section
three deals with what doesnt qualify as an invention under the Act, and
Section 3(d) in particular excludes “the mere discovery of a new form of a
known substance.
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which
doesnt result in the enhancement of the known efficaciousness of that
substance or the mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or apparatus unless
such known process results in a new product or employs at least one new
reactant” from being eligible for protection under patent law.
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This prevents what is known as “ever
greening” of patents.
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TRIPS and the Doha Declaration.
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The Doha Declaration on the TRIPS
Agreement and Public Health was adopted on November 14, 2021, by the WTO member
states.
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It
recognizes that “intellectual property protection is important for the
development of new medicines,” and acknowledges concerns regarding its effects
on prices.
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It says that the TRIPS agreement “does not
and should not prevent members from taking measures to protect public health,”
the declaration points out that the agreement “can and should be interpreted
and implemented in a manner supportive of WTO members’ right to protect public
health and, in particular, to promote access to medicines for all.
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Compulsory licenses can be invoked by a
state in the public interest, allowing companies apart from the patent owner to
produce a patented product without consent.
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This ensures the growth of generic
drug makers and therefore the public’s access to affordable medicines.
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