[Ip-health] 'Indian Patents ordinance not to create monopolies'

[Ram]

The Economic Times


The government on Monday blunted the charges in a recent New York
Times editorial which said India's Patents Ordinance '04 will deal a
double whammy to the world's poor by blocking the supply of cheap
drugs and killing competition that drives down prices.

Department of industrial policy and promotion secretary Ashok Jha told
reporters here that the Ordinance has enough safeguards in place to
ensure that the law does not result in monopolies. Besides, the
government will revisit all provisions, including the most
controversial "patentability criteria" before the Ordinance is
converted to a bill that will be tabled in the Parliament in the
budget session.

The January 18 NYT edit had suggested that the government could fix
the flaws in the Ordinance before it is ratified by the Parliament.

"The provision that 'mere' new use would not be patentable was
introduced to further clarify the law, but if it instead confuses the
stake holders, we will look into it," Mr Jha said at an interactive
session with industry representatives and patent attorneys.

The phrase "mere" new use was introduced to disallow patent for a new
use unless it is eligible as per the patentability criteria. Already
there are 15 exclusions to patentability, he added.

The NYT editorial had said generic drugs from India have been used to
treat patients in 200 countries and they have brought the price of
antiretroviral therapy down to $140 a year from $12,000. It alleged
that India's new law has little to do with free trade and more to do
with the lobbying power of the American and European pharmaceutical
industries.


In response to the charge that the Ordinance will limit efforts to
challenge patents before they take effect, Mr Jha said that the
pre-grant opposition provision was indeed a strong one. "It allows a
hearing to a patent opponent if he chooses to have one," Mr Jha added.
Compared to a written representation, a hearing is important as it
could be used to convince the patent controller of the product's
ineligibility.

The government also said the patent rules '05 have substantially
brought down the timelines for issuing a patent. The maximum and
minimum time limit of 104 months and 27 months to grant a patent, have
been reduced to 52 months and five months, respectively, he said.

Guidelines to be released soon

The government would shortly bring out exhaustive guidelines on patent
law to give explicit instructions to the patents office on how to
apply the legislation. The move assumes significance as many of the
government's earlier patent law related decisions are mired in
litigation.

"While the guidelines cannot go beyond what is said in the law, it
will have illustrative examples on how to execute the law and would
serve as handbook to its practice," said a senior Department of
Industrial Policy and Promotion official.

The domestic industry and various non-governmental organisations have
been demanding further clarity to the law on issues like
patentability, which they said, would lead to litigation if not
addressed by the government. The official said the voluminous
guidelines would include examples from software as well as
pharmaceuticals.