India Introduces Product Patent Regime

The Government of India promulgated a Presidential Ordinance December 26, 2004 to amend the 1970 Patent Act in order to meet the Word Trade Organization's (WTO) January 1, 2005 deadline on product patents, according to a statement released by the Press Information Bureau of India.

The Ordinance must be ratified by both houses of Parliament when it reopens in February, or it would lapse within six months.

Pharmaceutical, food processing and chemical companies will considerably benefit from the change in the Indian Patent Act. Effective January 1, 2005, India granted 20 year term product patents.

The following are the salient features of the Patent Ordinance 2004:

a) Extension of product patent protection to all fields of technology (i.e., drugs, food and chemicals);

b) Deletion of the provisions relating to Exclusive Marketing Rights (EMRs), and introduction of a transitional provision for safeguarding EMRs already granted;

c) Introduction of a provision for enabling grant of compulsory license for export of medicines to countries which have insufficient or no manufacturing capacity, to meet emergent public health situations (in accordance with the Doha Declaration on TRIPS and Public Health);

d) Modification in the provisions relating to opposition procedures with a view to streamlining the system by having both Pre-grant and Post-grant opposition in the Patent Office;

e) Addition of a new provison to circumscribe rights in respect of mailbox applications so that patent rights in respect of the mailbox shall be available only from the date of the patent grant, and not retrospectively from the date of publication;

f) Strengthening provisions relating to national security to guard against patenting abroad of dual use technologies;

g) Clarification of the provisions relating to patenting of software related inventions when they have technical application to industry or are in combination with hardware;

h) Rationalization of provisions relating to time-lines with a view to introducing flexibility and reducing the processing time for patent applications, and simplifying and rationalizing procedures.