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The Spirit of Patenting – Form 27

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April 10, 2018

What is the issue?

  • A PIL in Delhi HC has sought for better disclosure of ‘local working requirements’ for pharma patents in India through ‘Form 27’ . 
  • This might open another avenue for ‘compulsory licensing’ of products and also facilitate innovation in the country.

What is the spirit of patenting legislations in India?

  • Countries like India signed up to the intellectual property bandwagon to maximise opportunities for technology transfer.
  • Part of this exercise involves allowing local firms to compete and improve innovation, especially on life-saving pharmaceuticals.
  • Patents are not for the benefit of companies but for the promotion of research and betterment of the health metrics of the public.
  • There is hence no wisdom in enacting patent laws that mainly enable foreign companies to import products, without helping in our scientific progress.

What is Form 27?

  • A PIL was filed before the Delhi High Court – stressing the importance of “Working requirements” in the patents Act, 1970 (mainly drugs & medicines)
  • In essence, it stressed the need for making ‘Form 27’ (that seeks to ensure working of patented invention on a commercial scale) more rigorous.    
  • Patented invention needs to cater to the demands of the public and this is also mandated in the patent law (and Form 27 merely verifies compliance to this). 
  • If the demand is not met, then it can be a ground for ‘compulsory licensing’ of the product within India for enhancing supply and protecting public health.
  • Under a compulsory license, an individual or company seeking to use another's intellectual property can do so without seeking the rights holder's consent.
  • While patent owners usually have the right to decide on granting licenses for their products, compulsory licensing route is an exemption to the general rule.
  • A licence fee is paid to the rights holder as fixed by the licence granting authority (Controller General of Patents – under the Ministry of Commerce).

    What is ‘working requirement’ of patents?

  • Patent law grants to the patentees the privilege of enjoying a limited monopoly in order to achieve the objective of public benefit.
  • As part of the disclosures, patentees are required to disclose if they are locally working their patented invention in exchange for the conferred benefits.
  • Patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale to the fullest practicable extent.
  • Hence, it needs to be stressed that the monopoly granted to the patentees is not merely to import the invention but to make them locally too.
  • Historically, India has considered that “working” the invention is important for enjoying monopoly and non-working could enable compulsory licensing.

Will the working requirement violate WTO’s TRIPS?

  • In streamlining the local working requirement, especially in the field of pharmaceuticals, India is in line with its international trade obligations.
  • In fact, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides flexibilities to contries in honouring trade commitments.
  • Doha Declaration also outlines the right of national governments to compulsorily license patents as per their sitational needs and discretion.
  • Thus, lack of local working of a patent can be grounds for granting a compulsory licence, along with others such as high prices and lack of supply.
  • Doha Declaration hence allows the exercise of sovereign rights to define when patent rights could be curtailed to achieve a larger public interest result.

What needs to be done?

  • The country is obligated to protect the right to life of its citizens under Article 21, and this duty is heavier than its commitements to the patentees.
  • As monopoly holders, patentees shold contribute to the promotion of technological innovation and balance their rights and obligations.
  • Indian Patents Act through Form 27 requires a patentee (or licensee) to furnish statements of how the invention is been commercially worked in India.
  • But as the Form is bereft of crucial details, there is a need to revice it to ensures the spirit of patenting is observed and innovation is promoted.  
  • Conversly, ‘Controller General of Patetnts’ also has the right to publish the information received in the public domain.

 

Source: The Hindu

 

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