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Earlier this year, I had gone to the Department of Industrial Policy & Promotion (DIPP), Ministry of Industry & Commerce, along with Sumathi, hoping to collect some information under the RTI Act from the official files on the Patent (Amendment) Act, 1999 & 2002.
It was obviously impossible to photocopy all the files, so we did the next best thing and picked out what we thought were the most interesting papers. In particular we focussed on the DIPP’s internal notes on several articles in the print-media discussing the amendments. In most cases, the DIPP would flag an article and send it to the Patent Office for its comments. The Patent Office would send back its substantial comments to the DIPP within a few days. In this way, the then Under-Secretary Mr. Vinod Kumar, appears to have kept an eagle’s eye on all the press coverage of the amendments.
Apart from these papers, there are also several interesting letters that the Government received from Members of Parliament, retired judges & retired Controller-Generals of Patents. Also interesting was the delivery of the USTR 301 report to the DIPP in May, 2002, a few weeks before the Patent (Amendment) Act, 2002 was officially notified into law.
I’ve scanned the relevant documents and put them up as follows:
(i) An article by Dr. Bibek Debroy in Business Today dated May, 22 – June 6, 2000. In this article Dr. Debroy argues that Section 24A and Section 24C which were introduced through the 1999 amendment were incompatible with TRIPs. Section 24A provided for an Exclusive Marketing Right (EMR) for inventions as a transitional measure until India introduced substantive patent rights for food and medicine. S. 24C provided for compulsory licensing of EMRs in certain situations. The Patent Office replied with its comments on the articles, explaining how the Patent (Amendment) Act, 1999 was absolutely compatible with TRIPs.
(ii) An article by Justice Krishna Iyer (Retd.) in Frontline titled ‘The Doha-Delhi odyssey’ published on March 16, 2002. The article is available over here. In this article Justice Iyer calls for a substantial relook at the Patent (Amendment) Bill, 2002 which was then pending before Parliament. In its comments on the article, the Patent Office points out, quite blandly that “In the article, practically no suggestion has been made with respect to retention/amendment/substitution of any of the provisions of the Patent Bill.”
(iii) Correspondence between Dr. Mashelkar and the Joint-Secretary of the DIPP regarding queries from Phil Thorpe of the U.K. Patent Office, who apart from enquiring about certain aspects of the amendments also commended India on exploiting all the flexibilities contained in TRIPs. The queries raised by Thorpe which pertained to parallel imports, local working requirements and software patents were sent to the Patent Office by the DIPP. In its reply, the Patent Office agrees that parallel imports are allowed under Indian law. On the point of ‘local working’ however the Patent Office strangely enough states that the ‘local working requirement’ would be in violation of Article 27.1 of TRIPs.
The correspondence between Dr. Mashelkar, DIPP and the Patent Office can be accessed over here.
(iv) An article dated May 22nd, 2005 by Pratap Ravindran, in the Hindu Business Line, titled ‘Textual Errors in Patents Bill’. In this article the author points out several rather embarrassing typographical errors in the Patent (Amendment) Bill, 2002 which had just been introduced in Parliament. The DIPP and the Law Ministry hurriedly move amendments in Parliament to rectify these typographical errors.
The correspondence between the DIPP, the Law Ministry and the Patent Office can be accessed over here.
(v) An article by Jayanta Ghosh, dated January 21st, 2002; titled ‘Grey Areas in Patent Act Amendments’ and published in the Times of India. Amongst other things the article discusses the issue of ‘ever-greening’ of pharmaceutical patents, the ‘Bolar provision’ and export of patented products to countries where there were no patents covering the products. In its comments on the article the Patent Office discussed the concept of ever-greening and also how the Joint-Parliamentary Committee had included a ‘Bolar provision’ equivalent in Indian law.
(vi) An article by Nitya Chakraborthy in the Pioneer, dated 14 March, 2002 & titled ‘A Patent issue indeed!’, discussing the demands and interests of the domestic pharmaceutical lobby in light of the impending amendments. The article was forwarded to the Patent Office for comments.
(vii) An article by Pratap Ravindaran in the Hindu Business Line dated 15 February, 2002 & titled ‘Post-Doha scenario factor missing in JPC Report’, discussing a monograph authored by Narendra Zaveri on the subject of how the Joint Parliamentary Committee Report had not considered all the flexibilities of Doha in adequate detail.
(viii) An excellent article by Senior Advocate Rajeev Dhavan in the Hindu dated 17th May, 2002 & titled ‘A patent mistake’, in which Dhavan slammed India’s decision to implement TRIPs. In conclusion Dhavan demands that at the very least India should ensure licences of right for all patents related to either food or medicine at a flat rate of 4%. For some reason Dhawan’s article appears to have touched a raw nerve in the government because the DIPP for the first time prepared a letter to the editor countering Dhavan’s article.
The correspondence within the DIPP on this article can be accessed over here.
(ix) An article by Mr. M.D.Nair in the Hindu dated 29th March, 2001 & titled ‘A case for ‘Swiss-type’ claims in Indian Patents Act’. In this article Nair discussing how new uses of existing inventions, in particular new uses of pharmaceutical inventions, have a benefits for society and how India should protect such inventions through a ‘Swiss Claims’ mechanism.
(x) An article by Vandana Shiva in the Economic Times dated 27th May, 2002 & titled ‘The Monsanto Amendment’. In this article Shiva gives her take on how the proposed amendments would affect the seed industry.
(xi) A letter from Justice Krishna Iyer addressed to Members of Parliament along with an opinion from the former Controller General of Patents – Dr. S. Vedaraman. Also enclosed with this letter were other articles by Justice Iyer.
The entire chain of correspondence can be accessed over here.
(xii) Letters from MPs Mahendra Prasad & Ramakant Angle to the Minister for Commerce and Industry Murasoli Maran urging the latter to include more public health safeguards in the Patent (Amendment) Bill, 2002 and also enquiring whether it was possible for India to be treated as Least Developed Country for the purposes of implementation of TRIPS since LDCs were given 20 years to implement TRIPs.
(xiii) A fax from the American Embassy at Delhi to the Commerce Ministry on 8 May, 2002 informing the Indian Govt. that it would continue to remain on the ‘priority watch list’ in the soon to be published USTR 301 report. Also included is a ToI article on the matter and the comments of the Patent Office on the same.
The correspondence between the DIPP, the American Embassy and the Patent Office can be accessed over here.