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Dr. D.S. Prakasa Rao*

The conflicting interests of Developed and Developing Countries in international trade provide conflicting issues before the W.T.O.  Being a developing country, India has its own agenda with its constitutional commitment to welfare economics, socio economic justice and a just social order.  Naturally the Indian interests in world trade must be in those lines in tune with constitutional spirit. We have now accepted the rights and obligations of an internationally accepted patent protection regime and respect for intellectual property rights as part of our commitment to W.T.O. and the economy is now increasingly focusing itself on productivity and competitiveness.  The international economy represents a highly competitive arena where only the productive and efficient will survive and grow.  India is a mega bio diverse region of the world.  In India like any other developing or relatively poor country, the poor depend directly on the natural resource environment for their livelihood.  Agriculture, Forestry, Fisheries and Mining have a fairly good share of Gross Domestic Product (GDP) in India.  How can we withstand and give competition in world market with poverty? Laws on I.P.R. are about providing a framework for protection to the creator of the intellectual property.  The total process of the regulation is complex and far from the reach of rural masses.  Here the danger of violating the Human Rights of the poor is pertinent. The Human face of I.P.R. needs to be strengthened to overcome this danger.  An attempt is made in this paper to understand all these things.

Controversy Regarding  Intellectual Property Rights

The controversy regarding Basmati patent to an American based Ricetech  company by U.S Patent and Trade mark office (USPTO) exposes the danger of violating the rights of Indian farmers and other indigenous aboriginal people.  While wines and sprits can get higher level of geographical indication protection, other products of interest to developing and LDCs are not given a similar protection.  Regarding medicines and drugs based on biological and genetic resources of developing countries, the patent should reveal the country of origin of biological and genetic resources and traditional knowledge used in it and there should be equitable sharing of benefits.    

It is really unbecoming of India, with all its well developed legal systems and intellectual strength, to be outwitted by this kind of entrapment in another country with respect to our own indigenous plant varieties.  This shows how weak and inefficient we are in protecting and safeguarding the Indian biological wealth and indigenous knowledge. The Convention on Biological Diversity (CBD), 1992, acknowledges the sovereign rights of the member countries over their biological resources.  The Biological Diversity Bill, 2000, and the Protection of Plant Varieties and Farmer's Rights Bill, 1999, introduced in Parliament, but yet to be passed, strive to regulate the research of Indian varieties.  The recently enacted Geographical Indications of Goods (Registration and Protection) Act, 1999 intends to register and protect geographical indication in relation to goods.  But since the rules have not yet been formulated, the act cannot protect the Indian plant varieties. So far, there is no effective mechanism to patent our indigenous varieties in India.  We also lack documentation of our unique plant species and traditional knowledge of dealing with them.  The Rice Tec Patent case has in fact alerted us to take immediate steps in order to protect our national interests.  Given the gravity and magnitude of the problem, the Indian Government has to come out with bold initiatives and a legislative framework to protect the biological wealth from international biopiracy.

        But wide ranging apprehensions have been expressed some of them are that our economic sovereignty has been compromised, our agriculture would be ruined, our farmers would have to buy their seeds every year from multinationals, our public distribution system would have to be curtailed, our genetic wealth would be lost, the drug prices would shoot up, our market would become a heaven for foreigners.  One major controversy of GATT is the agricultural subsidies.  Much hue and cry has been raised in India about this factor.

The Issues on which India has Special Interest .

Critics in India expressed that our farmers would have to buy their seeds every year from multinationals our public distribution system would have to be curtailed, our genetic wealth would be lost, the drug, prices would shoot up by accepting the TRIPS agreements.  The criticism is that the amendment of the Indian Patent Act 1970 in line with the TRIPS proposal, means a rise in drug prices.
The issues on which India has special interest and which needs to be debated internally as well as with like minded members of WTO are the following:
-Art.7 defines the main objectives and principles, which mentions that Intellectual Property Rights should contribute to social and economic welfare and to a balance of rights and obligations of the members, while Art.8 stipulates prevention of abuse of IPR that will restrain trade or adversely effect international transfer of technology.  A liberal and permissible interpretation of these Articles will ensure equity in the application of TRIPS to the benefit of the country's economy and social welfare.
-Article 23 referring to geographical indications which now refers only to wines and spirits should be extended to include other products, particularly, agricultural and food products, which are important economic commodities for India.  An extended protection should prevent these indications from being future generic terms.  The TRIPS council should work out the legal modalities to provide for protection for all products and for all members.
-The Patentability Clause under Article 27.3 on life forms in general and micro-organisms in particular, need to be fully defined to remove ambiguities, which has far-reaching implications for the growth of biotechnology related products and processes.
-The Compulsory Licences provision under Art.30 and Art.31 along with Doha declaration provides for a more liberal provision for the grant of Compulsory Licences. However, they serve little purpose, unless there is guarantee of transfer of technology, since, most countries do not have the ability to produce a patented item without recourse to the knowhow.  In addition, under the current provisions, the use of Compulsory Licence is restricted to 'predominantly domestic market of the member, authorised such use.'  Exports of products produced under Compulsory Licences should be made possible to countries that would qualify to benefit from the Doha declaration.1

Now let us understand what is patent & what are the amendments brought to Indian Patent Act, and other new legislations that are brought in tune with WTO agreements on TRIPS.  The concept of the right conferred by a patent right is often misunderstood.  The grant of a patent carries with it no positive right.  This is contrary to our common experience of ownership in case of most personal property where one enjoys a positive right.  The right of ownership in a patent is a negative right – the negative rights exclude others from making, using or selling the patented invention.  The mere granting of a patent does not ensure that it would enable the inventor to make, use or sell the invention.  Thus, while the owner of a patent is not given a statutory right to practise his/her invention, he/she is given a statutory right to exclude others from practising their patented invention.  The exclusionary privilege given to the owner of a patent is a negative right.  In fact, in making, using or selling his or her own invention, the inventor may find that he or she infringes the patent right of others.  Only in those cases when the invention is very basic to art, does the grant of a patent take on the characteristics of a positive right.  A patent is the monopoly granted by the State to an inventor for a fixed period in an exchange for the disclosure of the invention so that others may profit from the invention.  The disclosure of an invention is considered of vital importance in any patent granting procedure.

Recent Amendments to Patents Act, 1970

With the establishment of WTO TRIP's Agreement have come into force w.e.f. 1.1.1995.   India being a founder member is under obligation to implement the provisions of TRIP'S Agreement.  One of the requirements under this Agreement is to make necessary mechanism to facilitate the applicant to file the applications for pharmaceutical and agro-chemicals where Member Country does not grant patent protection for such products.  This mechanism has been provided under Article 70.9 of the said Agreement.  Pursuant to these provisions, the Government of India promulgated an Ordinance dated 31.12.1994 to amend the Patents Act, 1970 and later on a Bill relating thereto was passed in 1995 in Lok Sabha but could not be presented in Rajya Sabha and referred to Select Committee.  However, in the year 1999 the Government successfully got passed the Patents (Amendment) Act, 1999 in Parliament and the President of India gave his assent on 26.3.`999.

Exclusive Marketing Rights (EMR)

          According to the Patent (amendment) Act, 1999 the provisions of section 5 have been amended by adding sub-section (2) for the grant of patent for pharmaceutical products which facilitate the applicants to file their applications for the grant of exclusive marketing rights (EMR) up to 31-12-2004.  Such applications have been named as "Mail Box" applications.

Conditions for the Grant of EMR

An EMR can granted if following conditions are complied with:

  1. application has been filed in India on or after 1.1.1995;
  2. the patent has been granted in a convention country;
  3. marketing approval has been granted in that country; and
  4. marketing approval has been obtained in India.

Procedure for the Grant of EMR

  1. On the basis of application filed under section 5(2) of the Patents Act, a request in the prescribed form with the proper fees can be filed to the Controller for the grant of EMR.
  2. On receipt of the request for EMR, the Controller shall refer the application to an Examiner for making report under theprovision of section 3 and 4 of the Patents Act, 1970.
  3. On receipt of the report, if the Controller is satisfied that the invention is not falling within the provisions of sections 3 and 4, he shall proceed to grant of an exclusive right to sell or distribute the article or substance.

Emerging IPR Issues

          Article 27 of the TRIP'S Agreement provides that patent shall be available for any invention relating to processes or products in all fields of technology without any discriminations as to the place of invention, the field of technology and whether products are imported or locally produced.  The patents have to be granted for:

  • 20 years irrespective of the field of patent,
  • the protection for micro-organism,
  • non-biological and micro-biological processes protection thereto,
  • protection to lower form of plants,
  • protection of plants variety either in the form of patent or by sue genres system or by combination thereof by the year 2004, and
  • product for pharmaceutical and agro-chemicals.

However, the TRIP'S Agreement provides certain exclusives from patentability of invention relating to :

  1. diagnostic, therapeutic and surgical methods for the treatments of human or animals,
  2. production of plants and animals other than micro-organism,
  3. essentially biological process for the production of plants and animals,
  4. the inventions which are prejudice to the environment,
  5. inventions which are necessary to protect order public or morality, and
  6. inventions which are to protect human, animal or plant life or health.

New Patent Regime and Indian Traditional Heritage

          India's rich stock of traditional medicines based on historical knowledge and traditional heritage has become an eyesore for transnational companies and other commercial outfits which are engaged in biopiracy in the name of research and development and getting Indian traditional medicines patented in their respective countries devoid of any international and national legal norms and ethical values.

The issue of traditional knowledge, genetic resources and bio-diversity are intertwined.  Traditional knowledge is a community right, not a private right as it is in patent law.  Conservation of Bio-diversity is a common concern of mankind and the State have sovereign rights over the bio-diverse resources in their territories and informed consent is must before access use and profit derived therefrom and profit derived therefrom and parting of profit to the community in common benefit on basis of benefit sharing.  There should be some mechanism to prevent against unfair or abusive exploitation of genetics resources.  The TRIP'S provisions are not preventive or remedial in nature but exploitative in nature.  Bio-safety protocol is necessary for controlling and regulating the genetically modified organisms.

Geographical Indications and TRIP's Agreement

          Section 3 of the TRIP'S Agreement provides for mutual recognition of Geographical Indication (like Basmati Rice and Darjeling Tea).  The Agreement contains a provision which provides that a Member shall provide the legal means interested parties to prevent the use of any means in the designation or presentation of a good that indicates or suggests that the good in question orginates in a geographical area other than the true place of origin I manner which misleads the public as to the geographical origin of the good.  There is, however, no obligation under the Agreement to protect geographical indications which are not protected in their country of origin or which have fallen into disuse in that country.  India has circulated a paper in the TRIP's Council of the WTO justifying the necessity for extension of higher protection under Article 24.2 of TRIP'S Agreement currently available only to wines and spirits-to the region specific products of developing countries.

Geographical Indications of Goods (Registration and Protection ) Act, 1999

          The Act as its name indicates is intended to register and protect geographical indications.

  • Definition of Geographical Indication
    "Geographical indication" in relation to goods has been defined to mean indication which identifies such goods as agricultural goods; natural goods or manufactured goods as originating or manufactured in the territory of a country or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to this geographical origin and in case where such gods are manufactured goods then either the goods are manufactured or processed in such territory, region or locality as the case may be.
  • Application for Registration
    An application for registration can be made for registering a geographical indication by as association of persons or producers or any organisation or authority representing the interests of the producers of the concerned goods.  The application must contain:
  1. a statement of how the geographical indication serves to designate the goods as originating from the concerned territory in respect of the quality, reputation or other characteristics which are due exclusively or essentially to the geographical environment, with its inherent natural, and human factors and the production or processing or preparation of which takes place in such territory or region or locality;
  2. the class of goods to which the geographical indication shall apply;
  3. the map of the country or region or locality in the country in which the goods originate or being manufactured;
  4. the particulars regarding the appearance of the geographical indication as to whether it is comprised of the words or figurative elements or both; and
  5. a statement containing such particulars of the produces of the concerned goods, if any, proposed to be initially registered with the registration of the geographical indication as may be prescribed.

A producer of the goods in respect of which a geographical indication has been registered may apply to the Register for registering him as an authorized user of such geographical indication.

Thus regarding traditional knowledge, one of the major issues needing resolution is related to the protection of Traditional Knowledge under a new 'Sui-Generis' system.  While disclosure of source of knowledge or material in the patent application is an acknowledgement of their use, it does not provide for a reward system to owner of that property.  The creation of the Traditional Knowledge Digital Library will only ensure that the traditional knowledge is already in the public domain; it does not in any way benefit the State as provided for under the Convention on Biodiversity (CBD).  In this connection, it is important to reconcile TRIPS and CBD, so that ambiguities and conflicts, if any, are removed.


          The whole structure of the modern electronic era is based and rests upon the edifice of the intellectual property.  Therefore, it is most essential and important to safeguard the interest of the researchers, institutions and individuals who are toiling day and night in bringing innovative methods, inventing new technology, advancing and promoting novel methods of manufacturing, entertainment and dissemination of knowledge, furnishing information through multimedia.  TRIP'S agreement play the most significant role in promoting the interests of copyright owners, patentees, trade marks owners etc.  It is the need of the time that in order to encourage the advancement of industrial rights, all the Member State should co-operative with each other and strive to create an atmosphere which may be most conductive in this direction.

Though the provisions of TRIP'S Agreement relating to grant of patent and EMR appear to be very ideal but they ignore the ground reality of breeding a tendency to create monopolistic trade practices in favour of the inventor to the prejudice of whole mankind.  Multinational corporations are sole beneficiaries in the majority of cases, which belong to developed countries.  Developing countries and its citizens are at receiving end.  Just imagine if a person invents something new, he will have EMR for a period of 5 years and a monopoly right for commercial exploitation for a period of 20 years against the whole world.

The greatest draw back of patent rules is that if a person has obtained a process or product patent, no other person can be granted patent for such process or product all over the world, even though, that similar process or product sole creation of his labour and skill.  This may discourage many to carryout research work and development technology leaving a few multinational in the field of technological research and development.  Further, there is no element of humanitarian consideration in these rules.  It is suggested that WTO Members should evolve rules to put a curb or ceiling on patentee's monopoly rights and power to fix prices, production and distribution.  A certain portion of the royalty, should be collected and deposited in a United Nations Fund, dedicated for service of poor and needy.
India should seriously consider new and additional systems to ensure protection of New Uses (Swiss Type Claims), Petty Inventions (Utility Modes) and 'Sui-Generis' system of protection of indigenous knowledge practices and products.
Now the challenges before India are

  1. To foster cooperation among developing countries as a means of development.
  2. To avoid Jobless growth, ruthless growth, voiceless growth, futureless growth and rootless growth.
  3. To achieve growth of stability.
  4. To strengthen competitiveness.



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