The Patents (Amendment) Act 2002 and the Patents (Amendment) Ordinance 2004

The amendments adopted in 2002 have removed most of the elements that gave the Patents Act 1970 its specificity. The most important impact of these changes is to have clearly shifted the balance between the interests of patent holders and the interests of the society, at large in favour of the patent holders. Some of the changes include the increase of the duration of protection to uniform 20-years, thereby increasing significantly the average duration of protection and removing the discrimination put in place in the case of process patents in the fields of health and nutrition where the term was of only seven years. The amendments have removed altogether licences of right from the Act at the level of the sections governing the working of patents.

Amidst changes, which significantly reinforce the position of patents holders, the amendments also seek in some respect to limit the rights of patent holders. The specific flexibility offered by the TRIPS Agreement has, for instance, been used in several cases. The environmental and health exceptions authorised by Article 27(2) of the TRIPS Agreement are, for instance, drafted into section 3(b). Similarly, a new section 3(j) uses all the exceptions allowed under Article 27(3) of the TRIPS Agreement. Further, the amendments seek to provide as extensive as possible a scope for section 5 that restricts patentability to process patents by specifying that the chemical processes referred to also include biochemical, biotechnological and microbiological processes.

In this context, the question of the protection of plant varieties requires to be addressed. The revised section 3(j) specifically rejects the patentability of seeds and plant varieties. However, Article 27(3) b requires protection for plant varieties. This is one of the few areas where governments can choose the protection system that they want to introduce through the sui generis option. In this case, the government decided to use this option and choose to draft a separate Act for this purpose. The Plant Variety Protection Act that introduces plant breeders' rights and farmers' rights in the legal system is analysed separately in Chapter 8 of the Patents (Amendment) Ordinance 2004.