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Vol.
XXIX No. 38
September
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Subverting The Indian Patent Act
Amit Sen Gupta
THE
Indian Patent Act was amended by the Indian parliament in March 2005, and due to
the sustained pressure from the Left many problematic provisions of the Patents
Ordinance issue by the government in December 2004 could be overturned. However,
even at the time when the parliament passed the Patents Amendment Bill (2005) it
was clear that certain sections in the government were not happy with the
amended Patents Act.
PATENT
OFFICE ISSUES DRAFT GUIDELINES
The
CPI(M) had warned that we would require to be vigilant in order to ensure that
the gains achieved by pushing through amendments suggested by the Left are not
frittered away in the actual implementation of the amended Patents Act. The
Controller General of Patents, Designs and Trademarks has recently published the
draft guidelines for patent examiners, titled Draft Manual of Patent Practice
and Procedure in the light of the amendments to the Indian Patent Act. These
guidelines are important and in fact might hold the key to how the amended Act
is actually implemented. While the Law embodied in the Patents Act provides the
framework, its actual implementation is often determined by how it is
interpreted through guidelines provided to patent examiners.
The
major problem of the Draft Manual is that substantial portions of it are based
on the documents and understanding of Patent Law of countries that are quite
different from the amended Indian Patents Law.
This is particularly true for the sections on Biotechnology and Software. All
the examples in the software section, for example, are taken from the US and
Europe, which currently grant patents on even naturally occurring genetic
material, life form patents (US), software patents, business process patenting
(US), new use patents, patenting of a minor variation of the original molecule,
new dosage patents, etc. None of these are allowed in India under the Amended
Patents Act, 2005. Therefore quoting extensively from case laws of these
regions or judgements of such countries would make the examiner believe that the
Patents Acts of these countries are quite similar and can be used as a basis for
accepting or rejecting Patents in India.
Nowhere
in the Draft Manual are these differences in Patents Laws of different countries
brought out. Reading through the Draft Manual,
particularly the biotechnology and software sections, it appears that the Draft
Manual is specifically designed to defeat the purpose of the Amended Act.
PATENTING
OF SOFTWARE
A
case in point is that of software. During the debate on the December Ordinance
on the Patents Act, the government repeatedly asserted that the amendment to the
section of computer programmes was to allow for patenting of embedded software.
Even though this provision was removed in the Act passed in March 2005, the
Draft Manual states clearly that Embedded software is patentable. Not only that,
software patenting has been sought now to be introduced by defining embedded
software in such general terms that virtually any computer programme that runs
on a computer can be patented. Therefore, the clause in the Indian Act that
computer programmes per se cannot be patented loses any meaning. No computer
programme can work without a computer; therefore defining
embedded software in a way that allows a computer programme to be patentable by
virtue of running on a general-purpose computer is to introduce software patents
through the backdoor.
To
prevent such interpretations, the guidelines should clearly state that the
addition of conventional equipment to a software solution does not turn that
solution into an invention. The Draft Manual should also make clear that
data processing is not a field of technology in the sense of patents law and
innovations in the field of data processing are not inventions in the
sense of patent law.
In
order to maintain the letter and spirit of the Indian Law the entire section on
software in the Draft Manual needs to be redrafted. In this section the examples
from the US are particularly misleading as the US Patents Office accepts
Business Processes and software to be patented, unlike the Indian Law.
The European Patent Office (EPO) has also started to grant software patents
though the Act of European parliament, though the Patent Offices of many of the
member EU countries do not accept software patents. Therefore quoting from US
Court rulings or EPO rulings on software is completely mala fide and defeats the
intent of the Indian Patent Law.
PATENTING
OF GENE SEQUENCE
Similarly
in the section on Biotechnology it is implied that a new gene sequence is
patentable. As per the Indian law, only micro-organisms are patentable and
not gene sequences. Clearly, the manual has based its guidelines on
practices followed by the European Patent Office (EPO) or the US Patent Office.
The
US Patent Law has always been liberal in granting patents in the area of
biotechnology. The United States Patent Office (USPTO) has, since 1980, issued
patents for over 6,000 genes and about 1,000 of these relate to human genes.
Currently, there are more than 20,000 patent applications related to genes
pending in the US. This is clearly the kind of practice that the Indian
Patent Act seeks to prevent, but the guidelines in the Draft Manual would
actually subvert this intention of Indian lawmakers.
MASHELKAR
COMMITTEE
It
must also be remembered that the Mashelkar Committee, set up by the government
of India is mandated to look into issues related to:
-
Whether
India would still be deemed to comply with TRIPs if it limited the grant of
patents for pharmaceutical substances to new chemical entities or to new
medical entities involving one or more inventive steps; and
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Whether
it would be TRIPs-compatible to exclude micro-organisms from patenting.
This
Committee was set up on the recommendations of the Indian parliament as there
was still no consensus on the above two issues. There was an explicit commitment
given in parliament that the Indian law could be further amended if the
recommendations of the Committee made this a necessity. Given this, the
finalisation of the Draft Manual at this stage, amounts to anticipating the work
of the Committee.
Clearly,
there has been insufficient application of the mind in formulating the Manual in
keeping with the nuances of the Indian law. It is imperative that the Manual not
be finalised immediately and a much larger discussion should be held among those
concerned with the issues. The Manual would be a
very important tool in the actual implementation of the Indian Patents Act. As
the Manual stands today, it has the potential to subvert many elements of the
Indian Law. It is entirely unacceptable that a Manual on procedures should seek
to patents overturn an Act that has been extensively debated and then legislated
upon by the Indian parliament.
