The amendments also seek to provide answers to some of the new issues facing the patent system. The amendments provide at least a partial answer to biopiracy concerns by requiring the disclosure of the source and geographical origin of the biological material used in a claimed invention [see Section 10, Patents Act 1970 (as amended up to 2002)]. This is supplemented by a provision that makes the failure to disclosure the source and geographical origin of the biological material used a ground for opposing the grant of a patent [see Section 25(j), Patents Act 1970 (as amended up to 2002)]. The Act also indirectly addresses questions related to traditional knowledge protection by denying the patentability of traditional knowledge [see Section 30(p), Patents Act 1970 (as amended up to 2002)]. In other areas, the Act seeks to use some of the restrictions that have been put in place in other countries. Thus, the Act now allows generic producers to get ready for marketing their products immediately after the patent expires, thereby reducing the time lag between patent expiration and availability of generics [see Section 107A, Patents Act 1970 (as amended up to 2002)].
With regard to compulsory licences, the amendments seek to strengthen the overall framework for compulsory licensing. Section 83 specifically mentions that patents granted should not “impede public health”, should not prohibit the Central Government from taking up measures to protect public health and that patents should be granted to make the benefits of the patented invention available at reasonably affordable prices to the public1 . In this context, the compulsory licensing regime requires to be discussed at length and in detail. First, this is the only place in the Act where a specific attempt has been made to make TRIPS responsive to domestic needs and priorities. Secondly, compulsory licensing enables the government to enhance the access to processes and/or products. In this context, it is important to note that the amendments in TRIPS Agreement stop short of proposing clauses like compulsory licensing in relation to TRIPS flexibility as guiding principles for the whole Patents Act. If a real attempt would be made concerning TRIPS flexibility, this would allow the Patents Office to use similar criteria in examining patent applications. The revised act – amendments made in 2002 in TRIPS Agreement – only proposes to apply flexibility at the level of the implementation of already granted patents and thereby restricts the potential effectiveness of the proposed clauses. Thirdly, it is doubtful whether focusing on compulsory licensing as the main tool to redress the perceived inequities of the international patent system constitutes an appropriate strategy. As Abbott (2002) puts it, ‘Experience does not seem to show that compulsory licensing is a tool, which can be used effectively by developing countries'.
Notes and References
1 See Section 83(d), (e) and (g), Patents Act 1970 (as amended up to 2002).