The 2002 amendments were followed by a set of amendments, which were required to put India in compliance with its obligation to introduce product patents in the health and food sectors as of 1 January 2005. A Patents (Amendments) Bill 2003 was introduced at the end of 2003, which was not passed by Parliament and has been dealt with by the Government of India. In December 2004, while the Bill was not reintroduced in Parliament, the government promulgated a temporary Ordinance after the end of the parliamentary session that had the effect of putting India in compliance with its TRIPS obligations by the imposed deadline, though this is only on a temporary basis2. For this reason, a bill was introduced on 1 January 2005 for effective compliance with the TRIPS Agreement.
The Patents (Amendment) Act 2002 and the subsequent changes are significant because they are likely to have completely reoriented the patent regime. To a large extent, it deviates on a number of important provisions adopted in the Patents Act 1970 as a result of the policy debates that took place after India's Independence. The significance is not so much linked to the fact that changes have been adopted, a prerogative to any sovereign government but to the fact that these changes have been adopted largely on the basis of international commitments taken under the TRIPS Agreement whose policy implications were not debated in Parliament before its adoption in 1994. While socio-economic conditions have significantly changed since the 1959 Ayyangar report, as mentioned earlier, some of the basic challenges such as access to food for all and access to medicines for all are far from solved. Futher, there has been no change in domestic or international provisions regarding the fundamental rights to health or to food, which could provide a policy basis for changing the patents regime. The rationale for doing away with the restrictions on the rights of patent holders in fields linked to basic food and health needs is, therefore, far from obvious.
Notes and References
2 The Patents (Amendment) Ordinance 2004, Ord. No. 7 of 2004.