Although the BJP when it was in opposition had opposed the Patent Bills etc and some of their leaders had participate in some of the resistance movements. But as soon as they came to power they showed their real face. They not only took a volte face and brought the bill themselves they disregarded all the advises given by non political organizations and others including the Parliamentary Standing Committees, requests of the chief ministers and now the law commission report, which specially had urged the government to take advantage to the provisions of the TRIPS agreement and incorporate exemptions in national interest.

 It was Justice B.P.Jeevan Reddy Chairman, Law Commission of India who himself have send a copy of the 167 report on ""The Patents (Amendment) Bill, 1998 of the commission to Minister of Law, Justice and Company Affairs Dr. M.Thambi Durai. In the forwarding letter he said, ""Law Commission had taken up the aforesaid subject suo moto in view of the fundamental importance of the provisions contained in the aforesaid bill. And notwithstanding the fact that it has already been passed by the Rajya Sabha. This unusual step has been passed been taken in view of certain significant omissions in the bill, which impinge seriously upon the national interest. He added,’’the recommendations contained in the report may be considered by the government and Parliament while debating the said amendment bill in the budget session.’’

It may be pointed out that Law Commission is virtually an independent statutory body and part from Reddy the members are retd, Justice Leila Seth and Dr. N.M.Ghatate.

In the introductory part of the report, the ""genesis of the report " has been spelt out. ""The Law Commission of India has taken up the study of the Patents (amendment) Bill 1998, (introduced in Rajya Sabha on 22nd December 1998) suo motu in view of the fundamental importance of the provision contained in it and notwithstanding. This unusual step is being taken in view of certain omission in the bill.’Although now the bill has passed but it is necessary to know what are the specific suggestions of the law commission

.The law commission report s recommended amendment of the section 5 of the Principal Act. It states that section 5 provides inter alia that in the case of " substances intended for the use, or capable of being used as food or as medicine or drug’’ while no patent shall be granted in respect of the ""claims of the substances themselves ‘ the "claims for the methods or processes of manufacture shall be patentable"", It said in other words the act did not recognize the product patent but recognized process patent only. According to the law commission report now the virtue of the present bill in question the exisitng section is proposed to be numbered as subs section (1) and a new sub-section, numbered as subs section (2) is sought to be introduced providing for product patent is respect of medicines and drug,

It points out that in the statement of objects and reasons appended to the bill, it is stated that articles 70.8 and 70.9 of the TRIPS agreement require that notwithstanding the transition periods allowed thereunder, member countries which do not provide for product patents in the areas of pharmaceuticals and agricultural chemicals, should provide, with effect form the date of coming into force of the WTO, Agreement (i.e. from 1st January 1995), a means to receive product patent applications for pharmaceuticals and agricultural chemicals and on fulfillment of certain conditions grant exclusive marketing rights for a period of five years or until the patent is granted or rejected whichever is shorter. In view of the commitment s made in the WTO accords, the Law Commission of India agrees that a provision like that is proposed in the section (2) may be necessary but at the same time there appears no reasons why India should not take advantage of and incorporate the exemptions permitted in the TRIPs agreement. It said that though Article27 of the Agreement on TRIPS entitles the member-states to provide for certain exemptions, which have not been incorporated in the Bill,::The said omissions impinge seriously upon our national interest", it is stated.

It suggests that the Bill should include sections to take advantage of the provisions available in TRIPS to exclude p11atentability in certain areas. These include diagnostic, therapeutic and surgical methods for treatment of humans or animals as well as inventions of which commercial exploitation should be prevented to protect public order or morality, protection of human, animals or plant life or health or to avoid serious prejudice to the environment. It further points out that it is provided that plants and animals other than microorganism and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this sub - paragraph shall be reviews four years after the date of the entry into force of the WTO agreement. There is no reason the commission reports states that why the proposed bill should not contain provisions in terms of the aforesaid provisions of the said article. And suggested an amendment so that the expression substance in this sub section shall not include plants or animals or any part thereof other than micro-organisms .The law commission argues that these provisions are necessary since the existing ones in the patents act 1970 do not provide by the Trips.

The commission also suggested measures to provide sufficient protection to indigenous medicines and practices, the commission feels the exemption provided for articles based on the Indian medicine system needs to be made more specific. It feels the definition of the expression "Indian medicine’’ in the bill does not take into account indigenous medicine or practices. It says," it is necessary to safeguard our traditional knowledge and practices still in vogue among the rural and tribal communities, from being covered by exclusive marketing rights. ’’The report therefore, recommends that a phrase should be added covering,’’any article, substance or method indigenously used or intended to be used for treatment.

The commission further proposed to deletion of s section 39 and reference to it other sections of the Principal Act.The section relates to resident Indians seeking permission for filling patent applications abroad. The commission felt that Section could be retained as it is designed to protect and promote the national interest but it couched in unnecessarily harsh terms. It recommends that it would be appropriate to provide that it within six weeks the controller does not inform that he has issue directions on the patent applications, the applicant should be free to apply for patent anywhere outside India.

Another recommendations of the commission is to amendment of section 64 of the Principal Act which provides for revocation of patents on certain specified grounds. Another ground of revocation is needed to protect the state interest, it was felt. Therefore a clause was proposed for insertion to say that the patent granted in contravention of the act ‘ provisions. This is also considered necessary to create a vested interest in the applicant to ensure the patent is granted in due compliance with law. This would ensure that applicants do not indulge in fraudulent practices for obtaining patents

In an important recommendations the committee suggests a concept of reciprocity on patents. The amendments bill specifies that if a country denies the same patent rights to Indian citizen s as are given to its own nationals, India would also deny that country citizens of the right to apply for patents in this country. The commission maintains that this provision is perfectly consistent with the country’s national dignity and honour, But it feels that an additional provision is needed to deal with instances where developed countries have recently dined the access to technology on the ground of dual use potential. Such denials have substantially increased since May last year and are seriously affecting the country’s security and technological development. It is significant to note that such denials are also not warranted under the WTO Accords. It is necessary, therefore to arm India to counter such discriminatory deals and restrictions,"" the reports .It adds hence it is recommended that in section134 after the words "’as it accords to its own nationals"’ and before the words ‘no material of such country"’, the words "or prevents or withholds access to any patented invention, whether product or process in any field of technology, by means of unilateral export prohibition, whether product or process in any field of technology, by means of unilateral export prohibition.This suggested addition is perfectly consistent with-indeed it furthers the object underlying section 134 and is essential not only to register our protest against such unilateral discriminatory restrictions but also to give effect to the principle of reciprocity in full. Accordingly a new amendment bill inserting the above words should be introduced.