Nuances in the Indian Patent System and Their Implications in the Enforcement of Patents in India

Prabuddha Ganguli

The patent system in India, which is over 160 years old, has undergone several amendments over the years with the incorporation and deletion of certain provisions to meet the socio-economic needs of the Indian society at large from time to time and also to comply with India's obligations as a member of international conventions and treaties.

A major transformation of the Indian Patent system in the early 70's was the result of a scholarly report of the Commission headed by Justice Rajagopala Ayyangar which was submitted to the Government of India in 1959. This report was the seed of the Indian Patents Act 1970 which deleted the provisions for product patents for inventions related to chemicals, agrochemicals, substances that were capable of being used as drug or pharmaceuticals or foods and any invention related to atomic energy. It however supported the cause of process patents in these areas. This report also recommended the inclusion of unique provisions on the "working of patents" and more specifically on the statutory "annual reporting of the working of patents in India". Non-compliance to these requirements had serious consequences that could result in the issuance of compulsory licences and revocation of the granted patents.

The TRIPS Agreement provided the next platform for changes in the Indian Patent System in which India chose to use the full time allowed by the TRIPS Agreement (up to January 2005) and to change its patent law with the re-introduction of product patents and inclusion of cer-tain specific "exceptions to patentability", bringing in explicit provisions for international exhaustion of patent rights, fairly broad "Bolar-like" provision, pre-grant opposition, post-grant opposition, retaining a "local working requirement" including "statutory reporting of working of patents", provisions in compliance with para 6 of the Doha Declaration, etc. The competition law in India is also operational.

Recent decisions in the Indian High Courts and the Supreme Court related to Patents have put a few of these provisions to test which have major implications on the patentability of inventions and enforcement of patents in India.

The presentation will elaborate on these nuances in India and their implications on partnering with India in innovations, investments and trade.