[Ip-health] Is the US style of examination right for India?

[Kajal Bhardwaj]

--
[ Picked text/plain from multipart/alternative ]
*Latha Jishnu:* Is the US style of examination right for India?

PATENTLY ABSURD

Latha Jishnu / New Delhi April 30, 2008

Intellectual Property (IP) is still a strange beast in this country. People=
 eye it rather warily, uncertain of its temperament (how hard will it bite =
or is it the clawing sort?) and the hidden threat in its still unfolding co=
ntours. To familiarise businessmen with this creature, industry organisatio=
ns have been doing a fair amount of spadework =96 organising seminars, work=
shops and talks by visiting experts. It was only towards the end of 2006, h=
owever, that such events became high-profile, regular and more widespread.

That's when Dominic Keating of the US Patent & Trademark Office (USPTO) beg=
an functioning as First Secretary (IP) at the US embassy in Delhi. He put t=
ogether a small team, one lawyer, IP specialist Sanjit Kaur Batra, and two =
assistants, and made it an evangelist station for spreading the light on IP=
R or intellectual property rights. He forged an alliance with the Confedera=
tion of Indian Industry to make IPR as much of a talking point with busines=
smen as VAT (value added tax), another much-distrusted concept some years a=
go, and appears to have succeeded to a large extent. He also began reaching=
 out to sections of society one would normally not both with =96schoolkids =
and housewives =96 to allow the idea of IPR to take root in a country which=
 the developed world considers as rather lax on the issue.

The overarching theme of such conclaves, many of them organised in concert =
with prominent American universities, is that protecting IPR creates wealth=
 and transforms economies but if you came to brass tacks it was invariably =
about combating piracy and counterfeit goods. But the US evidently has more=
 long-term goals in view. In December of that year India and the US signed =
a memorandum of understanding to further cooperation on IP rights, the focu=
s being on the training of personnel with a view "to strengthening the work=
ing of the IP systems in the two countries".

Much of the effort has gone into training our patent examiners, an issue th=
at is threatening to become a hot potato for Delhi. Over the past year and =
a half, the USPTO has provided long-term courses for about a dozen patent e=
xaminers, apart from week-long courses for sundry others from the customs o=
fficials, police and the registrar of copyrights to the
judiciary on the technicalities of the American patent system. Even a judge=
 of the Delhi High Court has been taken to the USPTO for a short-term cours=
e.

This is bound to raise hackles here. India's patent examiners are, admitted=
ly, ill-equipped and poorly qualified for their task, and the government ha=
s done little to set matters right. Instead, it appears to think that train=
ing courses in the most sophisticated patent offices of
the world is a good way of overcoming the huge problem of human resources i=
n India's patent system. Apart from the US, India has signed agreement with=
 the European Patent Office, and the governments of Japan and Switzerland a=
mong others for training our patent examiners. Legal experts and health act=
ivists, however, believe this is fraught with peril for a developing countr=
y that needs to keep public health concerns paramount.

They warn that the strict standards of patentability under India's patent a=
mendment Act of 2005 are not reflected in the laws of the developed countri=
es where big pharma companies are based. A report of the National Institute=
 for Healthcare Management on Changing Patterns of Pharmaceutical Innovatio=
n (2002) underlined this point when it said the majority of pharmaceutical =
patenting in the US is for new uses of old compounds. Section 3 d of the In=
dian Patent Act, on the other hand, strictly bars evergreening, the practic=
e of lengthening the life of a drug patent through trivial innovations.

Interestingly, the US patent system is under attack at home and Congress al=
ong with huge swathes of American industry is debating a major overhaul of =
its processes.

IPR took on new form and meaning in 2005 when India reintroduced product pa=
tents after a gap of over 40 years =96the Patent Act of 1970 recognised onl=
y process patents =96 but policymakers did little to prepare the country fo=
r the avalanche of patent applications that have inundated the four offices=
 of the Controller General of Patents (CGP) since 1995. But
leaving the training on substantive examination to countries whose laws are=
 not in synch with ours is likely to create more litigation =96 the courts =
are already clogged with such cases =96and add to the lack of clarity on wh=
at is patentable in India.

Training in the US and Europe has the potential of improving the technical =
skills of India's patent examiners but there is a real concern that they wi=
ll willy-nilly absorb standards of evaluation which are not relevant here.

  Clearly a double-edged sword.

  http://www.business-standard.com/common/news_article.php?leftnm=3D10&bKey=
Flag=3DBO&autono=3D321485



---------------------------------
Be a better friend, newshound, and know-it-all with Yahoo! Mobile.  Try it =
now.