In addition to above, there are a number of other trivial product patents granted in the pharmaceutical sector during the last over three years. The question arises whether these are really subject matter of real patentable research. Who is responsible for granting such patents? It would not be proper to blame the Patent Authorities alone for grant of such patents. The real blame lies with the broad based provision on patentability stipulated in the amended Patents Act 1970. The crucial issue of importance is whether the patent system is meant for researchers/scientists or trading enterprises i.e. shopkeepers, Dhabas, Vendors, etc. Government must realise that the patent system in India should not become a joke where patents are granted for subject matter like sanitary napkin, parottas (fried chapatti), broom, etc. Government much act fast and refer the matter of ?scope of patentability? covering definition of patentable invention, patentable pharmaceutical substance and even patenting of microorganism to the concerned Parliamentary Committee so that time is not lost in amending our Patents Act. Patentability should be for the real basic invention and not for the trivial subject matter. Lakhs of patents on trivial matter will only create crisis and result in high cost of economy as in USA.
Need for patentability rather than expanding:
The problem does not end with the need to modify the ?scope of patentability?. In a recent statement made by a concerned government official, it is observed that government is thinking of granting of patents for encouraging incremental innovations. The statement, in question, reads as follows :
?It may not be prudent to award patent only for a new molecule discovery, something which requires billion dollars of R&D investment. No Indian companies can afford it. So we are looking for ways to award patent for discovery of a new form of a known substance which results in the enhancement of the known efficacy of that substance.?
In regard to the above statement, it may be emphasized that certain technological innovations to pharmaceutical patented products may qualify for patentability under the patents system. Technological innovations when they satisfy the prescribed criteria can and should be protected only through process patents. The other possibility is that if there is significant technical advance over the invention claimed in the first patent, it is possible to grant dependent patent. Our Patents Act 1970 in Section 91 provides for licensing of related patents based on conditions stated therein. These available possibilities are sufficient and could be suitably availed by the industry. Government must not succumb to any pressure from the Multinational Corporations to liberalise the scope of patentability any further.
Before any further flexibility is even considered about the patenting of incremental innovation, it is important that there should be adequate public debate. It is a well-known fact that USA is also extremely worried about the patent frequency in that country. ?No patent examiner has enough time in their life to examine all innovations completely? as stated by Mr. John Doll, US Commissioner for Patents. Even the American Supreme Court has raised the bar for what subject matter deserves to be given a patent. There is a serious debate going on in USA as to how grant of patent could be contained. Even an important I.P.R. Commission established by U.K. have suggested containing of patents by the developing countries. The W.H.O. Commission on IPR and Innovations have also made similar recommendation. These aspects must not be ignored by our government.
To conclude, our Government has to consider in-depth and determine ways and mean for containing the scope of patentability.. This will serve public interest and also strengthen competitive environment and role of the domestic enterprises. TRIPS review under Article 71 of that Agreement is also over due. There are also a number of Doha Ministerial Declaration (November 2001) issues pending for decision. Government should also make all efforts with WTO to have decisions on these long pending issues expedited.
(The writer is retired Commissioner of Payments, Government of India. Presently he is Convener, National Working Group on Patent Law and Managing Trustee and Secretary General of Centre for Study of Global Trade System and Development. He can be contacted at [email protected])