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critic.gif (527 bytes)Economist’s Column
Patent Law: The Emerging Scenario

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usm-red.gif (844 bytes)Economist Column
Patent law: Emerging Scenario

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An year of BJP Govt
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Made in India

Pabitra Giri, University of Calcutta

India government is going to revise the patent laws shortly. Under the external pressure and perhaps under the pressure from comprador Indians, who in the short run are likely to be benefit from the changes either directly or indirectly? Patent law provides intellectual property right and paten right is generally seen as useful to encourage innovation. However economist even at the theoretical level do not unanimous about what could be an optimum patent regime. It is generally agreed that the nature of patent and its duration would vary with the product and country as well.

So far patent law in each country is different and patent has to be made separately in each country. Now, the countries that have signed the GATT agreement are required to change they're patent laws to conform to one international patent regime. In fact there are four types of proposed amendments to the Indian Patent legislation: (i) amendments to the Indian Patent Act of 1970 to be carried out by the year 2005 to conform the WTO (World Trade Organisation) guidelines defining the international patent regime (IPR); (ii) pending the comprehensive change, transitional amendments required under the TRIPS (Trade related intellectual property rights) agreement to give immediate effect to provisions of the Exclusive Marketing Rights (EMR) and the setting up of a Mailbox for receiving patent applications. There are two other related amendments: (iii) the proposed bill on bio-diversity, being prepared by the Ministry of Environment to give effect to the international agreement on biodiversity (1992); and (iv) the bill on plant varieties, proposed by the Ministry of Agriculture, mainly to safeguard the interests of plant breeders. In the ensuing budget session, the transitional amendments and other two bills will be placed before parliament.

The most important changes that would be introduced if the patent legislation conforms to the proposed international patent regime are: (a) providing exclusive marketing right to a holder of patent obtained from any of the member country of WTO. It is not necessary to have patent from each country separately. (b) Presently in Indian patent law only process patent is recognised, but now there will be both

Product as well as process patent. This means that, while earlier using the patented process, on the payment of royalty, the product can be produced using indigenous materials at a low cost, but once product patent is recognised, the production and pricing will be dictated by the patent holder company, usually a multinational. (c) Extension of the duration of patent to 20 years period. In the present age quick technological development, as the rate economic obsolation of technology is very high. Extending the duration of patent to 20 years period uniformly for all products and processes is designed to ensure a virtual monopoly of the multinationals. (d) The burden of proof about the non-violation of patent right, a costly legal process, particularly if to be contested in the courts of the developed countries, is placed on the defender. (e) Finally, unlike earlier patent regime patent on life has to be allowed.

These changes will have far reaching consequences on the economy and society of India. However many of these consequences will not be immediate and therefore common people as well as the policy makers are not adequately realising the latent dangers of the changed patent regime. The consequences include (i) the perpetuation of the technological dependence of the developing countries on the developed countries as the technological gap will be increased. (ii) The multinational companies will have an extensive control over our market as a result of the product patent. (iii) The technological progress and industrialisation process in India will be retarded – particularly with respect to drugs and pharmaceutical industries. India is one of the twelve countries rich in biodiversity. The patent on life will led to biopiracy and vigorous commercial exploitation of the biological resources, threatening the reduction in the level of bio-diversity.

In this juncture most important is how we should response to the emerging scenario. Given the present political alignment and the class interest, unless the common people as well as the conscientious political personalities are made aware of the latent dangers, it is very difficult to resist the forthcoming amendments in the patent regime. Besides at the international level, India should muster support from the other south Asian countries and build a front and make an attempt at least to modify some of the dangerous aspects, like life patent and twenty years duration of patent, during the review of TRIPS in the year 2000. Moreover, it is necessary to have a proper drafting of the patent law, taking into account the various provisions in GATT agreement, which can be used by the developing countries to their advantage. At the home front, emphasis should be given on the documentation and research on the traditional knowledge relating to biological resources including microorganism in the soil. In any litigation relating to bio-piracy, our claims cannot be validated unless proper document can be referred. It is necessary that community rights in various agricultural practices and in traditional knowledge should be protected by legislation. Further, patenting of innovation by our scientists should be encouraged.  





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