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Nov. 24, 2008

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Nov. 24, 2008
Since 1995, thousands of patents have reportedly been granted after India began to give product patents for pharmaceutical and agrochemical inventions.

Patents, or any intellectual property rights (IPR) for that matter, are highly contentious, the discussion of which would not only easily estrange industry (innovators) and consumer activists but also create deep divisions within the industry. Now that a large number of product patents are being granted in the pharmaceutical space, there’re bound to be some controversies.

Many of India’s pharma companies, including even the big and transnational ones who themselves have some stake in innovation and R&D, are alleging that patent authorities in India have become very liberal when it comes to grant of patents. Many frivolous patents have been granted and even bogus applications are being entertained, they say. The Indian Pharmaceutical Alliance, a group of big India-born drug companies, is mulling a thorough study of the patents granted since 2005 to find out how many of these are in fact ‘bad patents.’ At the other end of the scale, the foreign pharma companies not only brush aside the allegation of granting patents for ‘trivial inventions’ but also aver that “a lot of important applications” have in fact been turned down by India’s patent authorities.

The question that underlies this row is what’s a ‘patentable invention’. At a very general and non-codified level, the newness or rather the surprise element of an invention should be the deciding factor. The World Trade Organisation’s Trade-Related Intellectual Property Rights (TRIPS) agreement defines the term ‘patentable subject matter’ with due considerations to present-day commercial realities—it says an invention should be “new, involve an inventive step and capable of industrial application” to be deserving of a patent. National governments have drawn a lot of freedom from the TRIPS agreement itself and even autonomously to elaborate on the TRIPS definition. However, national laws of many countries, including the US, are framed in such a way that even “incremental, adaptive or cumulative” inventions could qualify for patents if such invention has a definitive industrial use and thereby considerable commercial value.

Indian government has been chary about unfair patenting—thanks to lobbying by domestic industry and the unrelenting stand of leftist outfits. It introduced an additional provision—Section 3(d)—in Patents Act to make patenting criteria more stringent in the pharmaceutical space. This provision was introduced through the third amendment to the Act, which also introduced product patenting for pharma and agrochemical inventions.

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