These rights are provided for a limited period of time in view of the need to maintain the balance between the reward offered to the inventor and society's broader interest in having free access to the technology. The usual period is currently twenty years, as provided under the TRIPS Agreement. In most countries, the duration of patent rights is similar for all categories of inventions today. This is a surprising result because the current twenty-year period is largely an arbitrary political choice and can be justified on economic grounds only for certain categories of inventions but not for all. In fact, there are different grounds justifying differential duration, which include, in particular, the technological significance of the invention and its social relevance. This proposition was partly implemented with success in the Indian Patents Act 1970, which provided for a reduced duration of process patents of seven years for substances intended for use as food or medicine 9.
The Indian Patents Act 1970 was subject to processes only. It implies that one can arrive at the same product by using different processes. However, the new Patents Act 2005, as part of the WTO agreements, is subject to both processes and products, which has significant implications for the developing world as a whole, and, India in particular.
On the whole, rights conferred by patents provide the patent holder monopoly rights over the invention. This implies, for instance, that patent holders can, in principle, determine whether they want to manufacture the invention themselves or license it to a willing licensee. Patent holders, under the TRIPS regime, can also decide whether they want to manufacture the invention in each country where they hold the patent or whether they want to use their privilege to import protected products. In general, the rights of the patent holder extend not only to the patented product or process itself but also to products that encompass the invention.
These expansive rights are, however, neither absolute nor uncontroversial. First, the grant of a patent does not necessarily ensure the right to exploit the invention in case there is a specific law that prohibits the exploitation of certain types of inventions. Secondly, the exploitation of a patent must happen within the context of national laws regulating the use of the specific invention. Thirdly, patent rights can be curtailed in certain circumstances. The most significant tool, at the disposal of states, is compulsory licensing. This allows the State to force the patent holder after a few years to provide licences to other manufacturers in situations where a product is not sufficiently available in the market to cover the needs of the population. Compulsory licensing is an important tool at the national level to ensure that the monopoly granted to the rights holder does not lead to denying access to technological progress for the public, in particular, if the product is either not manufactured or is in sufficient quantities. This is particularly important in the case of medical patents because unavailability or insufficient availability of a patented drug has direct public health implications 10.
Notes and References
9 Section 53, Patents Act 1970.
10 The TRIPS Agreement provides a set of minimum standards for patentability below which the member states of the WTO cannot go. This limits, for instance, the opportunities that countries previously had to restrict patentability in certain fields such as health and food. As a result of the much tighter framework in place, countries that want to use existing TRIPS flexibility have focused on compulsory licensing, which is perceived as a tool that can allow them to take care of some of the perceived problems brought about by more stringent criteria for patentability. One of the areas in which compulsory licensing has been the object of much debate is health. In fact, it has been one of the main battlegrounds, since the TRIPS Agreement, between developed and developing countries, and an area where the developing world achieved some success in view of the health emergencies they face.