Title:
Harmonization of Patent Rules and Regulations and its Plausible Implications in Developing Countries: A Case Study of India
Harmonization of Patent Rules and Regulations and its Plausible Implications in Developing Countries: A Case Study of India
Author(s)
Bhattacharya, Sujit
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Abstract
Historically it has been the privilege of each country to define rules and regulations of
its patent system, scope of patenting, exceptions and enforcement mechanism. This
had resulted in sharp differences in patenting provisions in different countries;
particularly the differences were substantial between developed and developing
countries. Majority of the developing countries like India had limited term of
patenting, product patents were not allowed in some sectors (mainly
‘pharmaceutical’), etc and enforcement mechanism was not so strong. This type of
patent system was in force in developing primarily to enable industries in these
countries to catch up with their counterparts in the industrialised economies. The
multilateral trade agreement, the WTO (World Trade Organisation) enacted in 1994,
enforced new rules and regulations for trade between countries. It was for the first
time through the TRIPS (Trade Related Intellectual Property Rights) agreement in the
WTO, protection and safeguard of intellectual property rights was introduced in trade
between countries. International trade is increasingly becoming technology driven. Share of high
technology goods in export is becoming important component of international trade
particularly by developed countries. In this technology driven market, creation and
successful translation of proprietary knowledge allow firms to be competitive. Firms
have increasingly complained that there are widespread infringements of their
protected technologies particularly in developing countries due to weak patent laws
and inadequate enforcement mechanism. This has been the major argument for
inclusion of IPR provisions in international trade agreement i.e. the Agreement
establishing the World Trade Organisation (the WTO Agreement) (However, this
argument has also come in for criticism as it has been argued by developing countries
as well as international agencies such as the WHO, that inclusion of stringent IPR
provisions can retard the growth of countries which are in different stages of
development). TRIPS agreement has three broad components: (A) Goals, objectives and standards of
IPR, (B) Mechanism for enforcement, (C) Specific needs of developing countries.
This agreement, explicitly defined through various articles, specifies the patent
provisions that member countries would have to provide in their patent law. Thus in
other words it essentially leads to the creation of a harmonised patent system i.e. to a
large extent creating similar patent rules and regulations in member countries. The present article by taking the case of India, a country in transition and a member of
the WTO, examines the changes that were undertaken by it in its patent provisions to
comply with the TRIPS agreement. The article also underscores the plausible implications of these changes. In a broad sense the situation in India i.e. the patent
system in the country and the effect of TRIPS agreement would be similar to other
developing economies. The paper is articulated in five main sections. Section 2 looks
at Indian Patent System) for patenting in India and the major deviations from the
TRIPS agreement. Section 3 covers changes that were required in the Indian Patent
Act to comply with the TRIPS agreement. Section 4 discusses the plausible
implications of the amendments. Section 5 examines India’s preparedness by
examining patenting trends of Indian firms. This section also covers impact of India
joining Patent Cooperation Treaty (PCT) by observing patent filing by Indian firms
through the PCT route as well as foreign patents that are entering India through this
route. Section 6 highlights the main findings that emerge from this study and their
implications.
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Date Issued
2006-10
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Proceedings