Nirupama Rao, the Indian Ambassador to US in a letter to the Senate India caucus has expressed willingness to discuss Patent policy in the interest of bi-lateral relations. The contents of the letter as available can be accessed here. Also in the letter, the Ambassador has spoken high of the Indian Patent Law stating that “India has a well-settled, stable and robust intellectual property regime. The three main pillars of this regime are comprehensive laws, detailed rules to back them up, and strong enforcement mechanisms, including for dispute resolution. In India, the IP framework is rooted in law.” The Ambassador also points out that the IP Laws, as in force, are fully compliant with the TRIPS. One object of concern in this letter is if India has evolved and is in compliance with International guideline, does discuss ‘Patent policy’ mean succumbing to lobby pressure to amend the Law, yet again?? If so, where are we headed??
Patent Law in India as it stands today, is more of a compliant Law rather than an evolved Law. Specificially after India embraced the Globalisation model, the amendments that have come, have been to bring compliancy. We had presented this view of evolution of India Patent Law here. This, in a crude sense, can be regarded as Evolution, if one needs to attribute it so. Every major amendment to a Patent Law in any other regime has been due to a case law decided. The case law could be pertaining to a procedure of Examination, Infringement or the Patent Law itself. In India, currently the focus is on filing Patent Applications and obtaining a Grant. The rules and procedure of Grant are also in the process of getting normalised across the various Offices. Although the number of Pre-Grant and Post Grant Oppositions have been on the rise, the decisions of these are yet to have a binding precedence on the procedure for examination and subsequent Grant of Patent.
A Patent Grant is strictly territorial. The Rights of a Patentee is enforceable only within the territories of India. Having said that, the Grant of a Patent cannot be in contravention to Laws existing within the territories of India. A US Trade Report termed as 301 Report published recently states “….. For example, a patent system much encourage the development of inventions that meet the well established international criteria of being new, involving an inventive step and being capable of industrial application” . If the phrase ‘international criteria’ referred to, in the report, is TRIPS, then India is already there well within the framework suggested (Art.62 para 4 under Part-IV of TRIPS read along with Art.41 paras 2 and 3 under Part-III of TRIPS). These articles have been debated enough and interpreted as well. The object of this discussion is not to revisit these arguments but to reassertain the fact that any Law is robust only when it evolves itself as an outcome of amendments primarily through case law and subsequently through international commitments.
The US Patent Regime, for example, through its Court of Appeals for the Federal Circuit (CAFC), the Supreme Court and USPTO has raised several questions relating to Patentable Subject Matter. Be it, in falling short of rejecting business methods through Bilski, the very recent rejection of Gene patent for a breast cancer gene or the numerous decisions on granting Patents to ‘frivolous’ Patents, the regime has been evolving.Patent litigations are still in infancy. There is a need for such cases to be filed and orders to be passed that leads to evolution of Patent Law in India.
A Law, territorial in its existence has to evolve within its territory primarily and adapt to the socio-economic conditions existing in the territory. A Law enacted cannot be isolated from other Laws existing in the territory and particularly in tune with the articles of the Constitution of the Land. In India, the Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty. Any Law enacted within India cannot contravene any of these commitment and IPR Laws are not immune to this commitment as well.
It is in this regard, that Patent Law in India, which has been amended the most number of times, only to make it compliant with ‘international standards’ should be allowed to evolve on its own and amend it’s Law based on the case laws. All stake holders should participate actively to ensure that there is an evolution and not revolution. Evolution is a sustainable model and revolution should act only as a precursor to the evolution.