TRIPS AGREEMENT AND LEGAL CHANGES IN INDIAN PATENT LAWS

Abstract

The TRIPS agreement is a minimum standards agreement, which permits members to offer more extensive protection of intellectual property. The Paris Convention, the Berne convention, international convention for the protection of Performers, generators of phonograms and Broadcasting Organization (Rome Convention), and the Treaty on intellectual property in respect of integrated Circuits (IPIC Treaty) Articles 3, 4 and 5 comprise the fundamental rules on national and most favored- nation treatment of foreign nationals, which are common to all categories of intellectual property covered by the Treaty.  

The TRIPS requires Members countries to make patent available for any invention, whether products or processes, in all fields of technology without inequity, subject to the normal tests of novelty, inventiveness and industrial applicability. It is also required that patent be available and patent rights enjoyable without inequity as to the place of invention and whether products are imported or locally generated. The application for patent shall be in the appropriate prescribed form only. The application shall be either in English or in Hindi. 

The new set of challenges stem from the deeper implications of the imminent product patent regime. With the exception of a few, most Indian pharma companies are unfamiliar with the nuances of complex patent prosecution strategies. The research-based pharmaceutical companies, on the other hand, have firsthand knowledge of successfully designing and implementing, sophisticated patent prosecution strategies. Therefore, the first hurdle for the Indian pharma industry is unevenness in the domain knowledge on patents. One of the ways to overcome this is to learn the use of patents as a business tool. The unrealistic defence against the global norms on patents is perhaps the most critical post-TRIPS challenge faced by the Indian pharmaceutical industry. 

This section attempts to analyze the implications of the TRIPS compliant patent regime. 

The key issues taken up in this section are  

1. The scope and extent of patentability of pharmaceutical products; 
2. Ever greening - the patent term extension strategies; and  
3. Implications of Compulsory Licensing provisions.