INTERNATIONAL PROTECTION OF PATENT WITH SPECIAL REFERENCE TO TRIPs AGREEMENT.

INTRODUCTION

Intellectual property is an area of the world’s numerous attributes that cannot be ruled out. This owes to the established fact that every day, somewhere and in some time, the human mind goes on thinking and conceiving ideas that could better the peaceful sustenance of humanity. International business has increased tremendously over the past few years. Internet use has allowed people to access information from all over the globe. Luckily, many nations have formed international laws that provide global protection for all intellectual property.

Intellectual Property (IP) has been traditionally categorized into Industrial property and Copyright. The term Industrial Property includes patents, trademarks, industrial designs, and geographic indications of source. Copyright protection is granted to protect literary, artistic and musical works. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs^. Intellectual property rights are generally said to be a bundle of exclusive rights granted to the lawful owner.

The term intellectual property denotes the specific legal rights, and not the intellectual work itself. It is important to be aware of what these IP rights are, how they can be protected and, in due course, how to benefit from them.

The protection of IPR has been an international issue since the second half of the 19^th century and the variety of business transactions that are increasingly adding up in numbers can only be secured by a very stable and comprehensive IPR system, though, we consider a world economy with on-going innovation in two countries that differ in market size, in their capacities for innovation, and in their absolute and comparative advantage in manufacturing.

WHAT IS PATENT?

Patent is a form of protection that provides a person or legal entity with exclusive rights for making, using or selling a concept or invention and excludes others from doing the same, also for claiming damages from those who infringe the invention.

A patent is also an exclusive right granted by rhe government to a patentee for a fixed period of time in exchange for the regulated public disclosure of certain details of a device, method, process, or composition of matter known as an invention which is new, inventive and useful.[1]

Patents generally cover innovations, products or processes that include new functional or technical aspects. It is granted by the Indian Patent Office and has a term of 20 years. After expiration of this 20 year monopoly the product/ invention will fall in the public domain for any third party to use it.

The legislations which deal with the protection and registration of patents in India are The Patent Act, 1970 and The Patent Rules 2003. The patent Act 1970 has undergone three (3) amendments in 1999, 2002 and 2005. In the 2005 amendment introduced product patent protection for food, pharmacueticals and chemical inventions.

In India an invention/product has to satisfy various criteria to qualify for a patent are:

• New/ Novel- The invention has a feature that sets it apart from previous inventions and is unknown to the public.
• Non-obviousness- The invention’s novelty must not be obvious to someone who has ordinary skill in the area of invention.
• Utility- The invention is considered useful[2].

INTERNATIONAL PROTECTION OF PATENTS

The important agreements that should be considered when contemplating international patent protection are:

A.    Paris Convention 1883

B.     The General Agreement on Tariffs and Trade (GATT)

C.     World Trade Organisation (WTO)- Trade Related Aspects of Intellectual Property Rights (TRIPS).

D.    World Intellectual Property Organisation (WIPO)

E.     Patent Coperation Treaty (PCT)

F.      Patent Law Ttreaty (PLT).

THE PARIS CONVENTION OF 1883

The Paris Convention is basically for the protection of Industrial property. It is one of the first and the most important multilateral treaties protecting intellectual property. Due to the difficulty in obtaining protection in various countries because of diversity of laws and publication in one country destroying novelty in another, a strong desire to overcome them arose and thus, led to the conference in Paris on March 20, 1883, which ended with final approval and signature of Paris convention for the protection of industrial property and it became effective on March 7, 1884.[3]

The Paris Convention was conceived to eliminate the threat of an inventor's work being stolen and used in another country where they would be free of any national patent laws protecting the invention. Inventors from around the world were reluctant to attend world fairs to display their new strides in technology.

This convention terms has been revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958, at Stockholm on July 14, 1967 and as amended on September 28, 1979.[4]

It was intended to apply to only Industrial properties in a very broad sense like patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.

·         Article 1(3) of Paris Convention states that Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.

·         Article 1(4) states that Patents shall include the various kinds of industrial patents recognized by the laws of the countries of the Union, such as patents of importation, patents of improvement, patents and certificates of addition, etc. 

MAIN PRINCIPLES OF PARIS CONVENTION

A. PRINCIPLE OF NATIONAL TREATMENT. 

Article 2 of the convention stipulates that states should not subject foreigners to higher protection standards than those applicable to its citizens. This principle first applies to nationals of member countries, both natural and legal persons, and then to nationals of non-member countries, if they are domiciled or have an industrial or commercial establishment in a member country. An exception to this rule is that states can refuse protection to non-member countries as it wills.

B. PRINCIPLE OF RIGHT OF PRIORITY

The right of priority means that, on the basis of regular application for industrial property right filed by a given applicant in one of the member countries, the same applicant or his successor in title may, within a specified period of time, apply for protection in all other member countries. These later applications will be regarded as if they were filed on the same day as the earliest application. They enjoy a priority status in respect to all applications on same invention. 

C. INDEPENDENCE OF PATENTS.

This implies that patents granted for inventions in member countries to nationals or its residents should and must be treated as independent of patents for invention obtained for the same invention in other countries, including non-member countries. It clearly implies that the grant of patent by one country does not impose on any other country to grant patent for the same invention. More on that, granting of patent cannot be refused by any member country on the ground that a patent for the same invention has been refused by another country.

COMMON RULES FOR PATENT

Among the Convention provisions that provide substantive rules protecting patents and patentees are the following:

A.    The Principle of Independence of Patents: Embodied in Article (4b) the principle that a patent application in one country of the Union is examined and granted or denied independent of applications for patents for the same or related inventions filed in other countries within and without the Union. Also, according to Article (4b) and (5), patent terms are measured in accordance with the applicable national law without regard to (not shortened by) a priority claim.[5]

B.     Right of the Inventor to be Mentioned: Article 4ter provides that the “inventor has the right to be named as such in the patent.”[6]

C.     Patentability not Effected by Restrictions on the Product: Article 4quarter provides that a patent shall not be refused or invalidated because the product patented or obtained by means of a patented process is subject to restrictions on its sale or importation under the domestic law.[7]

D.    Importation of Patented Products or Products Made from Patented Processes: Article 5A(1) provides that importation into a member country of products for which a patent has been granted in that country manufactured in another member country cannot result in forfeiture of patent rights in the country of importation.[8]

Article 5quarter provides that with respect to products imported into a member country manufactured by a process patented in the country of importation, the patentee will have all the rights with respect to the imported product that would normally be accorded the patentee with respect to products manufactured in that country. This latter provision protects the patentee of a process from importation into the country of finished products manufactured by the patented process outside the country of importation, but only where the domestic patent laws of the country of importation extend the patent right to products manufactured by patented processes.

E.     Failure to Work and Compulsory Licenses: Article 5A(2) through (4) allows countries to enact protectionist legislative measures granting compulsory licenses in order to prevent abuses that might result from the exclusive rights conferred by a patent for invention, namely the failure to work or to work sufficiently the patented invention within the member country, but the failure to work an invention cannot result in forfeiture of the patent except in cases where the grant of a compulsory license would not have been sufficient to prevent the abuse, and then only pursuant to a proceeding instituted no sooner than two years following the grant of the first compulsory license. Compulsory licenses must be non-exclusive, and cannot be granted before the later of four years from the date of filing of the patent application or three years from the grant of the patent. Compulsory licenses may also be granted in special cases, without alleged abuse on the part of the patent owner, where the patent affects a vital public interest, for example, in the fields of defense or public health. Compare Article 27 of TRIPS prohibiting countries from adopting working requirements for patents.

F.      Grace Period for Maintenance Fees: Article 5bis guarantees those holding patents in member states a grace period of at least six months to pay prescribed maintenance fees, and allows member states to provide for the restoration of patents that have lapsed by reason of non-payment of maintenance fees.

G.    Patents in International Traffic: According to Article 5ter, patented devices on board ships, aircraft or land vehicles of other member countries that enter temporarily or accidentally within the territory of another member country need not obtain the approval or license from the patent owner by virtue of the temporary or accidental intrusion.

H.    Inventions Shown and Marks Exhibited at International Exhibitions: According to Article 11 of the Convention, member countries are obliged to grant temporary protection, in the form of a right of priority or other assurance against the destruction of novelty, to inventions, models, designs and marks in respect of goods exhibited at “official” or “officially recognized” international exhibitions held in the territory of a member country.

GENERAL AND ADMINISTRATIVE PROVISIONS

Article 12 of the Convention obligates member states to establish a central industrial property service, either itself or through a regional organization, responsible for communicating with the public on matters of patents, trademarks and the like, which service must also publish an official periodical journal.

Article 19 of the Convention specifically permits member countries to conclude separate agreements among themselves for the protection of industrial property as long as these separate agreements do not include provisions that contravene those of the Paris Convention.

Article 28 provides that disputes not otherwise settled may be brought before the International Court of Justice, but parties adhering to the Convention may, at the time of accession, opt out of this provision.

Other administrative provisions provide for the governmental organs of the Union, comprising an Assembly composed of representatives from each member nation that meets every two years and formulates long term policy and direction; an Executive Committee composed of one fourth of the membership of the Union, that meets once yearly; and the International Bureau, headed by the Director General of WIPO, that handles the day to day administrative tasks of the Union.[9]

The recent TRIPs agreement accords so much significance to the Paris convention for its complexity and uniqueness. The question of universal protection was sought to be rectified by this convention. 1t goes beyond a mere treaty establishing rights and obligations to establishing a legal entity to carry out certain tasks.

It also benefited inventors by allowing them access for their work into foreign markets. In addition, the Paris Convention has become one of the largest international treaties in the world, enlisting 173 countries under its guidelines. This is a testament to its importance in intellectual property to protect the natural right to have exclusive rights to one's own work and for the growth of new ideas through inspiration.

GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT) 1948

From 1948 to 1994, the General Agreement on Tariffs and Trade (GATT) provided the rules for much of world trade and presided over periods that saw some of the highest growth rates in international commerce. It seemed well-established, but throughout those 47 years, it was a provisional agreement and organization.

The original intention was to create a third institution to handle the trade side of international economic cooperation, joining the two “Bretton Woods” institutions, the World Bank and the International Monetary Fund. Over 50 countries participated in negotiations to create an International Trade Organization (ITO) as a specialized agency of the United Nations. The draft ITO Charter was ambitious. It extended beyond world trade disciplines, to include rules on employment, commodity agreements, restrictive business practices, international investment, and services. The aim was to create the ITO at a UN Conference on Trade and Employment in Havana, Cuba in 1947.

Meanwhile, 15 countries had begun talks in December 1945 to reduce and bind customs tariffs. With the Second World War only recently ended, they wanted to give an early boost to trade liberalization, and to begin to correct the legacy of protectionist measures which remained in place from the early 1930s.

This first round of negotiations resulted in a package of trade rules and 45,000 tariff concessions affecting $10 billion of trade, about one fifth of the world’s total. The group had expanded to 23 by the time the deal was signed on 30 October 1947. The tariff concessions came into effect by 30 June 1948 through a “Protocol of Provisional Application”. And so the new General Agreement on Tariffs and Trade was born, with 23 founding members (officially “contracting parties”).

For almost half a century, the GATT’s basic legal principles remained much as they were in 1948. There were additions in the form of a section on development added in the 1960s and “plurilateral” agreements (i.e. with voluntary membership) in the 1970s, and efforts to reduce tariffs further continued. Much of this was achieved through a series of multilateral negotiations known as “trade rounds” — the biggest leaps forward in international trade liberalization have come through these rounds which were held under GATT’s auspices.

In the early years, the GATT trade rounds concentrated on further reducing tariffs. Then, the Kennedy Round in the mid-sixties brought about a GATT Anti-Dumping Agreement and a section on development. The Tokyo Round during the seventies was the first major attempt to tackle trade barriers that do not take the form of tariffs, and to improve the system. The eighth, the Uruguay Round of 1986-94, was the last and most extensive of all. It led to the WTO and a new set of agreements.[10] GATT dealt with only goods but not services and this was its only problem.

In India, it effected the changing of MRTP Act to Competition Act and in 1995, GATT changed to World Trade Organisation (WTO).

THE OBJECTIVE OF GATT

A.    Reducing barriers for international trade.

B.     Raising standard of living.

C.     To expand production.

D.    To utilise the world wide resources.

E.     To ensure employment.

F.      Reduction of tariff and other trade barriers.

G.    Discuss and resolve their trade disputes and discuss to enlarge world trading opportunities.[11]

BASIC PRINCIPLES OF GATT

A.   No discrimination

·         National treatment

·         Most Favoured Nation Treatment

B.     Predictability

·         Through binding

·         Transparency

C.     Freer trade that is suppression of trade obstacles through negotiations.

D.    Encourage development.

WORLD TRADE ORGANISATION (WTO) 1994 – TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPs).

TRIPs is an international agreement administered by WTO, which sets standards for intellectual property. It was negotiated at the end of Uruguay round of the general agreement on tariff and trade in 1994. The agreement lays down general principles applicable to Intellectual property and came into force on 15th January 1995. It is also the most comprehensive multilateral agreement on Intellectual Property. 

TRIPS consist of 7 intellectual property items namely:

a. Copyright and other related rights.

b. Trademark.

c. Industrial designs.

d. Geographical Indications.

e. Patents.

f. Integrated circuits..

g. Undisclosed information.

The Uruguay Round achieved that. The WTO’s TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is now available.

The agreement covers five broad issues:

·         How basic principles of the trading system and other international intellectual property agreements should be applied.

·         How to give adequate protection to intellectual property rights.

·         How countries should enforce those rights adequately in their own territories.

·         How to settle disputes on intellectual property between members of the WTO.

·         Special transitional arrangements during the period when the new system is being introduced.[12]

PRINCIPLES OF TRIPs

A.    NATIONAL TREATMENT.

It strengthens the principle of national treatment as it was first incorporated in Paris convention. It entails that each member of WTO shall accord to the nationals of other members a treatment which is not less favourable as it would give to her own member nationals with respect to the protection on Intellectual property. The national treatment charge in TRIPs differs from that which existed under Article III of GATT 1994. GATT addresses trade in goods the non-discriminatory implication is in respect to products or tangible things while in TRIPs, it is in relation to non-discrimination to persons. In a nutshell, it is treating one’s own nationals and foreigners equally. When legal rules distinguish in their express between foreign and local nationals, this may constitute discrimination as a matter of law, of dejure discrimination. One the other hand, legal rules that use identical terms to address foreign and local nationals may appear neutral, but in fact produce discriminatory results through operation in practice. When finally natural legal rules are discriminatory in effect, this is referred to as dejure discrimination. The TRIPs agreement includes both dejure and defacto discriminations.[13]

B.     MOST FAVOURED NATION PRINCIPLE (MFN)

The MFN principle was not specifically included in the WIPO convention since it was assumed that its members would not grant intellectual property rights to foreign nationals to a larger extent that their own nationals. This had to change when in the late 1980’s, bilateral pressures was mounted to increase IPR protection. Uruguay round negotiators became concerned that some countries even granted protection to foreign nationals than their own nationals and thus led to incorporating MFN into TRIPs.

MFN requires that each member should treat national of all other members on an equal basis in relation to Intellectual Property. The working of this principle will increase the allocation of resources and thereby lowering the cost of production, increasing the number of consumer choices and promoting world economic growth. It will also facilitate trade negotiations.

C.     The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says.

EXHAUSTION OF INTELLECTUAL PROPERTY RIGHTS UNDER TRIPs

Due to divergence between negotiating states, no consensus could be found on the question of exhaustion. The issue is whether the first introduction of a patented product in the market by the patent owner or with the patent owner’s consent exhausts the rights that can be claimed on the basis of the relevant patent?

Two main points can be highlighted:

Firstly, there is the question whether the introduction of patented product in one country exhausts the right in all countries where the product is patented or only in the country where it is introduced. This has been especially contentious in the case of medical patents because of the links between exhaustion, parallel imports and differential pricing. In the case of national exhaustion, there is scope for companies that wish to do so to sell their drugs at different prices in different markets taking into account different levels of economic development and capacity to pay.[14] In the case of drugs for diseases that exist both in developed and developing countries; differential pricing can have positive aspects. It allows pharmaceutical companies to sell in developed countries at a level, which allows them to maintain their profit levels. At the same time, the segmentation of the market permits the sale to developing countries of the same drug at a price much closer to the marginal cost of production may still be much more than what most patients in developing countries can afford. Similarly even if the price of a single dose is ‘affordable’ this may not be the case if a drug is to be taken for a long period of time.[15]

Secondly, differential pricing does not solve the problem of the incentive to the private sector pharmaceutical industry in the case of diseases, which occur only in developing countries. The prices that developing countries can afford are not sufficient to entice a developed country company to engage in the necessary research and development.[16]

Thirdly, there is the issue of the actual meaning of exhaustion in specific cases.

Article 6 of the TRIPs agreement does not provide a general solution to the question of exhaustion.

COMMON RULES OF TRIPs ON PATENT

a.       The agreement says patent protection must be available for inventions for at least 20 years.

b.      Scope of patent. General principles concerning the scope of patentability establish the widest possible scope. Some optional exceptions have, however, been introduced, allowing member states to take measures at the national level to retract patentability in certain specific fields.[17]

c.       Patent protection must be available for both products and processes, in almost all fields of technology.

d.      Governments can refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality.[18]

e.       They can also exclude diagnostic, therapeutic and surgical methods, plants and animals (other than microorganisms), and biological processes for the production of plants or animals (other than microbiological processes).[19]

f.       Plant varieties, however, must be protectable by patents or by a special system (Such as the breeder’s rights provided in the conventions of UPOV — the International Union for the Protection of New Varieties of Plants).

g.      RIGHTS OF PATENTEE. The agreement describes the minimum rights that a patent owner must enjoy like the patent holder has exclusive rights to prevent third parties from making, using, offering for sale, selling or importing for these purposes the patented product without the consent of owner but it also allows certain exceptions. A patent owner could abuse his rights, for example by failing to supply the product on the market.[20] Where the patent is for a process, the rights granted extend to the use of the process and also to the use, sale and import of products that are directly obtained through the protected process.[21] These exclusive rights which is obviously monopoly is given 20 years protection.

Article 30 of the TRIPs provides that; limited exception to the exclusive rights conferred by a patent provides that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interest of the patent owner, taking account of the legitimate interests of third parties. This clause, which only operates at the level of the regulation of the use of a patent already granted is potentially wide ranging because there is no definition of the limited exceptions that are allowed.

Member states should thus be able to use Article 30 to justify a variety of socio-economic measures they may wish to take to control the abuse of patent rights. But the exception must not unreasonably conflict with the exploitation of the patent, and thirdly the exceptions should not unreasonably prejudice the legitimate interests of the patent owner. However, the structure of Article 30 seems to imply that the legitimate interests of third parties are subordinate to the interests of patent holders.

Even if this is the case, there are situations such as the case of life saving patented drugs where the legitimate interests of third parties, such as people suffering from HIV/AIDS, could be deemed to override other interests and allow states to adopt exceptions.

h.      The agreement says governments can issue “compulsory licences”, allowing a competitor to produce the product or use the process under licence. But this can only be done under certain conditions aimed at safeguarding the legitimate interests of the patent-holder.

Article 31 provides a number of conditions that states must follow. These include: (i) compulsory licensing can only be allowed on a case-to-case basis.[22]

(ii) States must first try to secure authorization on commercial terms unless it is a situation of national emergency or the state wants to make public non-commercial of the invention.

(iii) The term of the licence must be limited in time to the purpose for which it is authorized, must be non-exclusive, and must be mainly to supply the domestic market.

(iv) The patent holder is entitled to ‘adequate’ remuneration.

One of the interesting features of the compulsory licensing regime under TRIPs is that there is no limitation of the purpose for which compulsory licenses can be granted. This can be read as gain for developing countries since the United States wanted to restrict the grounds for compulsory licenses. Further states are also free to determine what constitutes a national emergency.[23]

i.        If a patent is issued for a production process, then the rights must extend to the product directly obtained from the process. Under certain conditions alleged infringers may be ordered by a court to prove that they have not used the patented process.[24]

j.        Temporary exceptions were also granted. Such exception allowed developing countries like India to retain specific exclusions to product patentability for ten years after the entry in to force of TRIPs agreement. This covered, for instance, the product patents for pharmaceutical, which did not have to be introduced before January 2005.

Some conditions were, however, attached to this exclusion. Firstly the extra time could not be used to change laws in a way that would have taken the country further away from compliance, for instance by introducing further restrictions on patentability during the transitional period.[25] Secondly, in the case of restrictions on pharmaceutical and agricultural products, countries had to introduce a means for filling applications for patents on such invention.[26] Further in the intervening period, patent applications were to be granted.

k.      Exclusive Marketing Rights (EMRs) for a period of 5 years or until the acceptance or rejection of the application.[27]

An issue that has arisen recently is how to ensure patent protection for pharmaceutical products does not prevent people in poor countries from having access to medicines — while at the same time maintaining the patent system’s role in providing incentives for research and development into new medicines. Flexibilities such as compulsory licensing are written into the TRIPS Agreement, but some governments were unsure of how these would be interpreted, and how far their right to use them would be respected.

A large part of this was settled when WTO ministers issued a special declaration at the Doha Ministerial Conference in November 2001. They agreed that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health (Article 8). They underscored countries’ ability to use the flexibilities that are built into the TRIPS Agreement. And they agreed to extend exemptions on pharmaceutical patent protection for least-developed countries until 2016. On one remaining question, they assigned further work to the TRIPS Council — to sort out how to provide extra flexibility, so that countries unable to produce pharmaceuticals domestically can import patented drugs made under compulsory licensing. A waiver providing this flexibility was agreed on 30 August 2003.[28]

Article 7 is the only provision, which evokes the balance between the rights granted to individual intellectual property rights holders and the broader interests of society at large. In the TRIPs context, the focus is on the use of intellectual property rights as incentives for foreign investment and technology transfer.[29]

EFFECT OF TRIPs ON INDIAN PATENT LAWS

India became signatory to the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization in 1995 along with other developing countries with a hope that TRIPs regime will result in free flow of trade, investment and technical know- how among the member countries by removing barriers that exists in the form of differences in the standards of intellectual property.

TRIPS AGREEMENT AND AMENDMENTS TO THE INDIAN PATENTS ACT 1970

The unaltered earlier Indian patent regime under 1970 Indian Patents Act differed in many ways from that of the TRIPs agreement.

·         The Patents Act drastically restricted the rights of patent holders in fields linked to basic needs. This is due to the fact that the adoption of the Patents Act 1970 was based on a lengthy legislative process and careful consideration of the socio-economic impacts of the patents in sensitive fields such as health and food. Therefore India had to considerably alter its patent law. In order to fully comply with the TRIPs provisions India amended the Patents Act 1970, three times.

·         The first two amendments to the patent legislation took place in 1999 and 2002 mainly to accommodate issues like ‘exclusive marketing rights’ (EMRs) and to extend the patent protection for the 20 years respectively. In 2005, the Patents Act 1970 has been amended for the third time. Immediately after this amendment the scientific, technical and business communities geared up for intense debate.

THE PATENTS (AMENDMENT) ACT, 1999

In compliance to the provision of transitional arrangement and protection of existing subject matter as per Articles 65 and 70 of TRIPs, India notified an amendment to the Patents Act, 1970, by proposing and introducing

·         Exclusive Marketing Rights (EMR) provisions on 1st January 1995. However, this notification failed to receive assent of the Parliament and lapsed thereafter. Consequently, India was dragged to Dispute Settlement Body (DSB) by United States and European Union. On receiving the adverse judgment from DSB, India successfully enacted in the 1st Amendment introducing the EMR provision for a period of 5 years or till the product patent is granted or patent application is rejected, whichever is earlier and the mailbox procedure for patent applications claiming pharmaceutical and agro-chemical products retrospectively from 1st January 1995.[30]

·         The main objective of the Patents (Amendment) Act 1999 is to remove exclusion of product patents in the area of food, medicine and drugs. According to the Government, this has been necessitated by India’s obligations as a signatory to the WTO. However, by merely introducing new clauses for exclusive marketing rights associated with product patent applications in the area of pharmaceuticals and agrochemicals as required by the TRIPs treaty without introducing new clauses for exclusion.

·         The Patents Act 1970 had excluded large areas from patentability. The 1999 Act in contrast gives Exclusive Marketing Rights (EMRs) merely on the basis of foreign patents obtained after 1 January 1995 without any scrutiny on the basis of impact on public health, public morality or the public interest.[31]

·         The Patents (Amendment) Act, 1999 specified four pre-conditions to be met by an EMR applicant: (a) the applicant must hold a valid patent on pharmaceutical product granted after January 1, 1995 in any of the WTO member countries; (b) the applicant should have marketing rights in the member countries; (c) a product patent application should already have been made in India, and (d) marketing approval of the same product should have been granted in India. The first three conditions were as per the stipulation of TRIPs agreement. The fourth clause was incorporated to meet the Indian drug regulatory approval.

·         The other important change made was the removal of restriction on residents to apply for patents outside India. In the Patents Act (1970) It was obligatory for residents (section 39) to seek prior permission before applying for patent outside India.

·         This Act sought to provide stronger patent protection for foreign pharmaceuticals and to create stronger domestic research capabilities. For example, an Indian company (Ranbaxy Lab, Inc.) signed a $ 90 million dollar joint venture with Eli Lilly & Co. to collaborate for pharmaceutical research and development. These Indian patent laws could allow the Indian pharmaceutical industry to modernize its pharmaceutical industry and compete with the developed world.[32]

THE PATENTS (AMENDMENT) ACT, 2002

The second of the three amending Acts in the evolution of India’s patent law towards TRIPs compliance was the Patent (Amendment) Act, 2002, effective from 20 May 2003.The 2002 Act implemented a number of important changes, but most significant was

·         The extension of patent term to twenty years. Uniform term of patent protection of 20 years for all categories of invention as per Article 33 of the TRIPs agreement has been prescribed. The 2002 Act amended the principal Act to provide that the term of all Indian patents would henceforth expire twenty years after their application filing date. Prior to this amendment, Indian process patents lasted only for the shorter of 5 years from sealing or 7 years from the date of the patent, while the term of all other types of patents (e.g., mechanical devices) was 14 years from the date of the patent.

·         Another notable aspect of the 2002 amendments was formal recognition in India’s Patents Act of the nations’ accession to two leading international intellectual property treaties, both administered by the United Nations-affiliated World Intellectual Property Organization (WIPO). As required by TRIPs, India brought its laws into compliance with the provisions of the Paris Convention for the Protection of Industrial Property, which entered into force in India on December 7, 1998. India henceforth had to abide by the Convention’s national treatment principle, which forbids discriminatory treatment of foreign applicants, as well as its right of priority, which allows foreigners who have previously filed an application for patent in their home countries a twelve-month priority period in which to file an application directed to the same invention in India while retaining the benefit of their earlier home country filing date.[33]

·         The Patents (Amendment) Act, 2002, implemented a myriad of other changes intended to bring India’s patent law into accord with the TRIPs agreement, including new definitions of ‘invention’ and ‘inventive step’ and new exclusion from patentable subject –matter like business methods, algorithms and traditional knowledge.

·         The amendment also reversed the burden of proof provision involving cases of process patent, infringement and streamlined the compulsory licensing framework.

·         The 2002 amendment also paved the way for patentability of microorganisms.

·         The 2002 amendments are substantially different from the 1999 draft with regard to compulsory licensing. Section 83, which provides a general framework to guide the issuance of compulsory licences, is particularly noteworthy. It constitutes a broader endeavour to incorporate some of TRIPs in-built flexibility in to the Patents Act.

Interestingly, Section 83 specifically mentions that patents granted should not “impede protection of public health”, should not prohibit the central government from taking measures to protect public health and the patents should be granted to make the benefits of the patented invention available to the public at reasonably affordable prices.

·         Qualification of patent agents was amended restricting to only science, engineering and technology graduated to be patent agents. Additional exceptions,[34] penalties and many other amendments were introduced to comply with TRIPs and to balance the rights and obligations. Appellate Board for patents was introduced under Chapter XIX, which came into effect much later in 2007.

THE PATENTS (AMENDMENT) ACT, 2005

India became a party to the TRIPs agreement in April 1994. At that time, India’s current enactment, the Patent Act of 1970 directly contravened Article 27 of the TRIPs agreement. Upon coming into effect on January 1, 1995, TRIPs set out transitional periods for WTO members to introduce legislation complying with the obligations under TRIPs.

For developing countries like India, the deadline for complying with TRIPs was the year 2000. In addition, Article 65.4 of TRIPs provided a special transitional provision for those countries that did not grant product patents. The provision provided an additional five years (until 2005), from the initial TRIPs transitional period to introduce product patent protection. India took advantage of this extra transition period. Technically speaking, only one amendment was required under TRIPs, i.e., the introduction of product patents for pharmaceutical inventions. However, the ordinance carried out a further 74 amendments to the Patents Act, thus taking it much beyond the TRIPs requirements. In effect these set of amendments took India into a ‘TRIPs plus’ regime. On December 26, 2004, India issued a presidential decree to amend its law and meet this final dead line. The Patents (Amendment) Act of 2005 passed by the Indian Parliament, replaced that Ordinance.

Under TRIPs agreement, WTO members have to enforce product patents for agrochemicals and pharmaceutical compounds. About 50 developing countries, including India had not complied with this requirement during the Uruguay round of GATT negotiations. The much awaited and debated patents amendment was finally passed in parliament in March 2005. This third amendment to the Indian Patents Act 1970 brought India in the line with the TRIPs agreement.[35]

Some other important changes made were:

(a) Redefining the scope of invention. Of particular significance were (i) allowing patents for treatment of plants (medicinal, surgical, curative and prophylactic process) to render them free of diseases or to increase their economic value or that of their products, and (ii) allowing patents covering microorganisms;

(b) The source of geographical origin of biological material used in invention was made mandatory to be disclosed in the invention. A list of Authorized Depository Institutions were notified in the gazette of India, Part II, Section 3 for depositing the biological materials mentioned in the specification at the time of filing a patent application.

·         India moved from a process patent system to a product patent system in 2005. The patent law is one of the seven intellectual property laws protected under this agreement. Section 5 of the TRIPs agreement deals with Patents. Article 27 says that “patents shall be available for any inventions, whether products or processes in all fields of technology provided that they are new, involve an inventive step and are capable of industrial application”.[36]

·         The most prominent and controversial change has been the deletion of section 5 of the Patents Act, 1970, thereby paving the way for product patents in the area of pharmaceutical and other chemical inventions. Section 5 of the Patents Act, 1970 (as it stood after the 2002 amendments) had provided that, in the case of inventions being claimed relating to food, medicine, drugs or chemical substances, only patents relating to the methods or processes of manufacture of such substances could be obtained.

·         Act 2005 is the cornerstone provision for bringing India’s patents law into compliance with TRIPs. Product Patent is the granting of patent to the ‘final’ product irrespective of the process used for obtaining the product. Once you obtain a patent on the product, then one is precluded from manufacturing that product, even though with a different process.

·         Software Patentability Section 3(k) of the Patents (Amendment) Act, 2005 excluded “a computer program per se” from the scope of patentability. This exclusion met with conflicting interpretations at the patent office, with some examiners granting patents to software combined with hardware or software with a demonstrable technical application of some sort. The 2004 Ordinance therefore qualified this exclusion by stating that software with a “technical application” to industry or when “combined with hardware” would be patentable. Owing to vigorous opposition from the free software movement, this provision was removed from the 2005 Act. The earlier position under the Patents Act, 1970 that a computer program per se is not patentable now prevails.

·         Distinguishing Features of Patents (Amendment) Act 2005 ‘New Invention’ The Patents Amendment Act, defines the term ‘new invention’ as “any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art”.43 It appears that the intent behind this provision is to define a ‘novelty’ standard - which, along with ‘non-obviousness’ (or ‘inventive step’) and ‘utility’ (‘industrial applicability’), are the three prerequisites for ‘patentability.

·         The ‘Inventive Step’. The 2005 Act makes a critical change to the earlier ‘non-obviousness’ or ‘inventive step’ test. The definition now reads: ‘inventive step’ means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to the person skilled in the art. As can be seen from this definition, while the fundamental yardstick for measuring an ‘inventive step’ remains that which is “not obvious to a person skilled in the art”, a requirement that the invention involve a ‘technical advance’ or have an ‘economic significance’ of some sort has been added.

·         Pharmaceutical Substances. The introduction of a new definition for “pharmaceutical substance” under Section 2(t a) of the Patents Act, as amended, defines a pharmaceutical substance as “any new entity involving one or more inventive steps”.

·         The ‘New Use’ Exclusion. Section 3(d) of the Patents Act, 1970 excluded a “new use for a known substance” from the ambit of ‘invention’. The 2005 Act has expanded on this exception by providing that “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance” would not be patentable.

The new Patents Act (Patents Amendment Act 2005) has created a strong patent system in India. Overall the present Act has increased the scope of patenting and provides stringent safeguards to the patentee. The new Act would play a major role in creating a technology driven market. Firms would increasingly try to create monopoly based on their patented technology. Indian firms primarily those that are in high technology areas would face increasing pressure, as patented products would enter the market.

WORLD INTELLECTUAL PROPERTY ORGANISATION (WIPO).

The World Intellectual Property Organization (WIPO) is the global forum for intellectual property services, policy, information and cooperation. WIPO is the global forum for intellectual property services, policy, information and cooperation. It is a self-funding agency of the United Nations, with 189 member states.

The World Intellectual Property Organization (WIPO) was established by a convention of 14 July 1967, which entered into force in 1970. It has been a specialized agency of the United Nations since 1974, and administers a number of international unions or treaties in the area of intellectual property, such as the Paris and Berne Conventions.

WIPO’s objectives are to promote intellectual property protection throughout the world through cooperation among states and, where appropriate, in collaboration with any other international organization. WIPO also aims to ensure administrative cooperation among the intellectual property unions created by the Paris and Berne Conventions and sub-treaties concluded by the members of the Paris Union.

The administration of the unions created under the various conventions is centralized through WIPO’s secretariat, the “International Bureau”. The International Bureau also maintains international registration services in the field of patents, trademarks, industrial designs and appellations of origin. WIPO also undertakes development cooperation for developing countries through advice, training and furnishing of documents.

An agreement on cooperation between WIPO and the WTO came into force on 1 January 1996. The agreement provides cooperation in three main areas:

·         notification of, access to and translation of national laws and regulations

·         implementation of procedures for the protection of national emblems

·         And technical cooperation.[37]

The treaties administered by WIPO fall into three groups. 

A.    The first group consists of treaties which establish international protection, that is to say, they are treaties which are the source of legal protection agreed between countries at the international level.  Four treaties on industrial property fall into this group.  They are

·         The Paris Convention for the Protection of Industrial Property,

·         The Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods,

·         The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, and

·         The Nairobi Treaty on the Protection of the Olympic Symbol

Two treaties in the field of copyright and neighboring rights fall into this group, namely

·         The Berne Convention for the Protection of Literary and Artistic Works and

·        The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations

B.     The second group consists of treaties which facilitate international protection.  Seven treaties on industrial property fall into this group.  They are

·         The Patent Cooperation Treaty which provides for the filing of international applications for patents,

·         The Madrid Agreement Concerning the International Registration of Marks,

·         The Protocol Relating to the Madrid Agreement just mentioned (both of them provide for the filing of international applications for marks),

·         The Lisbon Agreement which has already been mentioned because it belongs to both the first and the second groups,

·         The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure,

·         The Hague Agreement Concerning the International Deposit of Industrial Designs and

·         The Trademark Law Treaty which entered into force on August 1, 1996. 

Two treaties in the field of neighboring rights may also be considered as falling into this group, namely

·         The Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms and

·         The Brussels Convention relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite.

C.     The third group consists of treaties which establish classification systems and procedures for improving them and keeping them up to date.  The following four treaties, all dealing with industrial property, fall into this group: 

·         The Strasbourg Agreement concerning International Patent Classification (IPC),

·         The Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks,

·         The Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks and

·         The Locarno Agreement Establishing an International Classification for Industrial Designs.

ACTIVITIES OF WIPO

A.    Assistance to developing countries constitutes the first pillar of WIPO’s activities, and takes the form of

1.      Training (groups and individuals, in general or specialized courses, seminars to provide for an exchange of information and experience),

2.      Promotion of creative activities and of technology transfer,

3.      The provision of technological information contained in patent documents,

4.      The provision of advice on laws and regulations as well as

5.      The management of industrial property offices and copyright collective administration societies, as well as the provision of equipment.

B.     The second pillar relates to activities in the setting of international standards and norms for the protection and administration of intellectual property.  They are concerned with

1.      Revision of existing treaties or creation of new ones,

2.      Simplifying procedures at the national, regional or international levels for the granting of intellectual property rights,

3.      The effective enforcement and protection of such rights,

4.      The efficient management of collections of industrial property documents used for search and reference, and devising means for making access to the information they contain easier; 

5.      The maintenance and updating of international classification systems, the compilation of statistics; 

6.      Collection of laws on industrial property and copyright law administration. 

Under this heading could be included the work of the WIPO Arbitration and Mediation Center.  Promotion of the acceptance--or wider acceptance--of treaties, by countries is also an important activity of WIPO.

C.   The registration activities are the third pillar of WIPO and involve direct services to applicants for, or owners of, industrial property rights.  These activities concern the receiving and processing of international applications for the protection of inventions, or for the international registration of marks or deposit of industrial designs. 

Thus, generally, WIPO in relation to patent administers, protects and kind of supervises all the treaties under it including TRIPs.

PATENT COOPERATION TREATY 1970

The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally for their inventions, helps patent Offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions. By filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in a very large number of countries.

Signed in June 1970, in Washington, D.C., and became operational in June 1978 with 18 States.

The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.

THE PCT PROCEDURE INCLUDES:

Filing: you file an international application with a national or regional patent Office or WIPO, complying with the PCT formality requirements, in one language, and you pay one set of fees.

International Search: an “International Searching Authority” (ISA) (one of the world’s major patent Offices) identifies the published patent documents and technical literature (“prior art”) which may have an influence on whether your invention is patentable, and establishes a written opinion on your invention’s potential patentability.

International Publication: as soon as possible after the expiration of 18 months from the earliest filing date, the content of your international application is disclosed to the world.

Supplementary International Search (optional): a second ISA identifies, at your request, published documents which may not have been found by the first ISA which carried out the main search because of the diversity of prior art in different languages and different technical fields.

International Preliminary Examination (optional): one of the ISAs at your request, carries out an additional patentability analysis, usually on an amended version of your application.

National Phase: after the end of the PCT procedure, usually at 30 months from the earliest filing date of your initial application, from which you claim priority, you start to pursue the grant of your patents directly before the national (or regional) patent Offices of the countries in which you want to obtain them.[38]

ADVANTAGES OF PCT

1.       applicants have up to 18 months more than if they had not used the PCT to reflect on the desirability of seeking protection in foreign countries, appoint local patent agents in each foreign country, prepare the necessary translations and pay national fees;

2.      Applicants can rest assured that, if their international application is in the form prescribed by the PCT, it cannot be rejected on formal grounds by any designated office during the national phase;

3.      On the basis of the international search report and the written opinion, applicants can evaluate with reasonable probability the chances of their invention being patented;

4.      Applicants have the possibility, during the optional international preliminary examination, to amend the international application and thus put it in order before processing by the various patent offices;

5.      The search and examination work of patent offices can be considerably reduced or eliminated thanks to the international search report, the written opinion and, where applicable, the international preliminary report on patentability which are communicated to designated offices together with the international application;

6.      Since each international application is published with an international search report, third parties are in a better position to formulate a well-founded opinion about the potential patentability of the claimed invention; and

7.      For applicants, international publication puts the world on notice of their applications, which can be an effective means of advertising and looking for potential licensees.

Ultimately,

a.       Brings the world within reach

b.      Postpones the major costs associated with internationalizing a patent application

c.        Provides a strong basis for patenting decisions

d.       Used by the world’s major corporations, universities and research institutions when they seek international patent protection

e.       Allows you to apply securely and easily online, and to save money by doing so.[39]

The PCT created a Union which has an Assembly. Every State party to the PCT is a member of the Assembly. Among the most important tasks of the Assembly are the amendment of the Regulations issued under the Treaty, the adoption of the biennial program and budget of the Union and the fixing of certain fees connected with the use of the PCT system.

PATENT LAW TREATY 2000

The Patent Law Treaty (PLT) was adopted in 2000 with the aim of harmonizing and streamlining formal procedures with respect to national and regional patent applications and patents and making such procedures more user friendly. With the significant exception of filing date requirements, the PLT provides the maximum sets of requirements the office of a Contracting Party may apply. The PLT was concluded in 2000, and entered into force in 2005.

The PLT is open to States members of WIPO and/or States party to the Paris Convention for the Protection of Industrial Property (1883). It is also open to certain intergovernmental organizations. Instruments of ratification or accession must be deposited with the Director General of WIPO.[40]

OBJECTIVES OF PLT

1.      Unification of patent law

2.      Simplify procedure

3.      Reduce cost

4.      Enable that offices maintain quality

5.      Avoid duplication

6.      Meet needs of large and medium offices

7.      Assist developing countries

GENERAL RULES OF PATENT LAW TREATY

A. Offices must award a filing date to applicants with 3 requirements.

B. Content of international applications must be documented.

C. A specified model for international forms.

D. Priority should be give based of first to file.

E. Sufficient disclosure.

F. Novelty.

G. Grace period

The PLT is open to States members of WIPO and/or States party to the Paris Convention for the Protection of Industrial Property (1883). It is also open to certain intergovernmental organizations. Instruments of ratification or accession must be deposited with the Director

CONCLUSION

All of these conventions have one way or another contributed positively and negatively to the subject matter of Intellectual property and patent as a case study. However, I would not fail to say that each of them has their loopholes from which the laws get bent and most times broken.

With all these international laws, where is the scope for proper sovereign laws by a state for its own citizen? Seeing that even the liberty given to make law is still limited to certain provisions.

Any loopholes in the laws in relation to intellectual property would be the downfall of not just a state’s economy but the world at large.

BIBLIOGRAPHY

TEXTBOOKS

a.     Dr. Elizabethan Verkey, Law of Patents, (2^nd ed. 2012)

b.    P. Narayanan, Intellectual Property Law, (3^rd ed. 2001)

c.      Dr. S.K Singh, Intellectual Property Rights Laws, (2^nd ed. 2013)

d.    Dr. S.R Myneni, Law of intellectual property, (7^th ed. 2015))

JOURNALS, MAGAZINES, BLOGS AND WEBSITES

a.       Protection of intellectual property rights under the Indian and international law, Altacit Global, available at http://www.altacit.com/publication/protection-of-intellectual-property-rights-under-the-indian-and-international-laws/#i_2, last seen on 25/02/2017.

b.      [1] Benita Ezeigbo, Major international conventions protecting intellectual property, Miss Benny, available at http://bennylegal.blogspot.in/search?updated-max=2017-02-23T09:24:00-08:00&max-results=7, last seen on 25/02/2017.

c.       World Intellectual Property Organsation, Paris convention for the protection of Industrial property, available at http://www.wipo.int/treaties/en/text.jsp?file_id=288514, last seen on 25/02/2017.

d.      Seth M. Reiss Lex-IP.com Honolulu, Hawaii, Commentary on the Paris convention for the protection of industrial property, available at http://www.lex-ip.com/Paris.pdf, last seen on 25/02/2017.

e.       World Trade Organisation, The GATT years, from Harvana to Marrakesh, available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm, last seen on 26/02/2017.

f.         Manjunath abv. Influence of GATT on the Indian economy, author stream, available at http://www.authorstream.com/Presentation/manjunathabv-1355567-influence-of-gatt-on-the-indian-economy/, last seen on 26/02/2017.

g.      World Trade Organisation, Understanding the WTO agreements, available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm, last seen on 26/02/2017.

h.      Koel Roy, The Internalisation Of Patent Laws.

i.        Fredrick M. Abbot, “First Report to the Committee on International Trade Law of the International Law Association on the Subject of Parallel Importation”, Journal of International Economic Law, 1998, p. 607

j.        P. Danzobn, “Differential Pricing for Pharmaceuticals: Reconciling Access, R&D, and Intellectual Property”, CMH working paper series paper No WG2:10, 2001.

k.      Gopakumar G. Nair, “Impact of  TRIPs on Indian Pharmaceutical Industry”, Journal of Intellectual Property Rights, Vol. 13, September 2008, p.436.

l.        Vandanashiva, Patents Myths and Reality, (New Delhi: Penguin Books India (P) Ltd., 2001), p.104.

m.    Angela J. Anderson, “Global Pharmaceutical Patent Law in Developing Countries – Amending TRIPS to Promote Access for All”, bepress Legal seris, 2006, http://infojustice.org/download/pdf. Accessed on 10-5- 2010.

n.      Shodhganga, Influence of TRIPs on Indian Patent Law, available at http://shodhganga.inflibnet.ac.in/bitstream/10603/21666/9/chapter-vi.pdf, last seen on 01/03/2017.

o.      World Trade Organisation, What is WIPO? available at https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm#WIPO,  last seen on 02/03/2017.

p.      World Intellectual Property Organisation, PCT- The International Patent System, available at http://www.wipo.int/pct/en/, last seen on 02/03/2017.

ACTS

a.     Indian Patent Act of 2005.

b.    Indian Patent Act of 1970.

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[1] Dr. S.K. Singh, Intellectual Property Right Laws, 91, (2^nd ed.2013)

[2]Protection of intellectual property rights under the Indian and international law, Altacit Global, available at http://www.altacit.com/publication/protection-of-intellectual-property-rights-under-the-indian-and-international-laws/#i_2, last seen on 25/02/2017.

[3] Benita Ezeigbo, Major international conventions protecting intellectual property, Miss Benny, available at http://bennylegal.blogspot.in/search?updated-max=2017-02-23T09:24:00-08:00&max-results=7, last seen on 25/02/2017.

[4] World Intellectual Property Organsation, Paris convention for the protection of Industrial property, available at http://www.wipo.int/treaties/en/text.jsp?file_id=288514, last seen on 25/02/2017.

[5] Seth M. Reiss Lex-IP.com Honolulu, Hawaii, Commentary on the Paris convention for the protection of industrial property, available at http://www.lex-ip.com/Paris.pdf, last seen on 25/02/2017.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Supra note 5.

[10] World Trade Organisation, The GATT years, from Harvana to Marrakesh, available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm, last seen on 26/02/2017.

[11] Manjunath abv. Influence of GATT on the Indian economy, author stream, available at http://www.authorstream.com/Presentation/manjunathabv-1355567-influence-of-gatt-on-the-indian-economy/, last seen on 26/02/2017.

[12] World Trade Organisation, Understanding the WTO agreements, available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm, last seen on 26/02/2017.

[13] Koel Roy, The Internalisation Of Patent Laws.

[14] Fredrick M. Abbot, “First Report to the Committee on International Trade Law of the International Law

Association on the Subject of Parallel Importation”, Journal of International Economic Law, 1998, p. 607.

[15] P. Danzobn, “Differential Pricing for Pharmaceuticals: Reconciling Access, R&D, and Intellectual Property”, CMH working paper series paper No WG2:10, 2001.

[16] Ibid.

[17] Article 27(3)of TRIPs Agreement.

[18] Article 27 (2) of TRIPs Agreement

[19] Article 27 (3) b of TRIPs Agreement

[20] Article 28 of TRIPs Agreement

[21] Article 28.2 of TRIPs Agreement

[22] Compulsory licensing for a whole class of products such as all medicines would not be acceptable.

[23] Supra note 13.

[24] Article 28.2 of TRIPs Agreement

[25] Article 65 (4) b of TRIPs Agreement

[26] Article 70.8 of TRIPs Agreement.

[27]Article 70.9 of TRIPs Agreement

[28] Supra note 12.

[29]It provides that the protection and enforcement of intellectual property rights should contribute to the

promotion of technological innovation and to the transfer and dissemination of technology, to the mutual

advents of producers and users of technological knowledge and in a manner conducive to social and

economic welfare, and to a balance of rights and obligations

[30] Gopakumar G. Nair, “Impact of  TRIPs on Indian Pharmaceutical Industry”, Journal of Intellectual Property Rights, Vol. 13, September 2008, p.436.

[31] Vandanashiva, Patents Myths and Reality, (New Delhi: Penguin Books India (P) Ltd., 2001), p.104.

[32] Angela J. Anderson, “Global Pharmaceutical Patent Law in Developing Countries – Amending TRIPS to Promote Access for All”, bepress Legal seris, 2006, http://infojustice.org/download/pdf. Accessed on 10-5- 2010.

[33] Dr. Rajeshkumar Achary, “Recent Changes in Patent Laws: India”, available at http:/ /www .sristi. org/mdpipr 2004 /day1/D1S1R1.doc. last seen on 01/03/2017.

[34] Section 107A, Patents Act, 1970.

[35] Shodhganga, Influence of TRIPs on Indian Patent Law, available at http://shodhganga.inflibnet.ac.in/bitstream/10603/21666/9/chapter-vi.pdf, last seen on 01/03/2017

[36] Ibid

[37]World Trade Organisation, What is WIPO? available at https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm#WIPO,  last seen on 02/03/2017.

[38] World Intellectual Property Organisation, PCT- The International Patent System, available at http://www.wipo.int/pct/en/, last seen on 02/03/2017

[39] Ibid

[40] Supra note 38.