LEGAL WRITING

Mohammed Arham Reza

B.com LLB(H)
Semester-IX
A90821615022

The Recent Development In Intellectual Property Regime

-A Critical Analysis
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Content Page
Chapter I
1.0 Synopsis……………………………………………………………………………………… 2
1.1 Importance of Intelectual Property Rights in developing countries………….... 4
1.2 Research & Methodology……………………………………………..…………… 5

Chapter II
2.0 Introduction…………………………………………………………………………………… 6
2.1 Evaluation of an International IP regime…………………………………………. 7
2.2 Development of Intellectual Property Law in India……………………………… 9
2.3 Transition Period……………………………………………………………………. 15
2.4 Recent Developments……………………………………………………………… 19

Chapter III
3.0 India’s Law enabling to protect IP domestically…………………………………………………23
3.1 Further Legislation is necessary to bring IP regime upto International Standards…26
3.2 Steps taken by the government to improve enforcement of IP……………………….27
3.3 Steps taken by FICCI………………………………………………………………… …30

Chapter IV
4.0 Novartis decision of the Indian Supreme Court
4.1 Introduction……………………………………………………………………………….. 31
4.2 Facts leading to the decision…………………………………………………………… 32
4.3 Analysis of the Supreme Court decision……………………………………………… 35
4.4 Is section 3D Trips compliant…………………………………………………………... 37
4.5 Conclusion………………………………………………………………………………... 39

Chapter V
5.0 Critical Analysis…………………………………………………………………………………….. 41

Chapter VI
6.0 Conclusion…………………………………………………………………………………………... 44
6.1 Acknowledhement…………………………………………………………………………. 46
6.2 Bibliography………………………………………………………………………………… 47
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1.0Synopsis
Intellectual property rights are the rights given to persons over the creations of their minds and give the
creator an exclusive right over the use of his/her creation for a certain period of time.

Recent times have been extremely crucial for the development of intellectual property law particularly
in India. Certain developments have very effectively highlighted the increasingly important role
played by intellectual property law in today‟s times in both social as well as economic diaspora. The
World Intellectual Property Organization (WIPO) took concrete measures on June 28, 2013 to end the
tragedy of „book–famine‟ faced by people with visual impairments, by signing an international Treaty
to improve the status of access to books, journals and other published materials by visually impaired
people. The „Marrakesh Treaty‟ is touted as the first intellectual property covenant with an express
reference to Human Rights; highlighting the increasing interplay between intellectual property rights
and other branches of law.

Closer home, India acceded to the Madrid Protocol on April 8, 2013, with the Protocol coming into
effect in India on July 8, 2013. The Madrid Protocol is an international system which seeks to
facilitate the registration of Trademarks on a global scale, across different jurisdictions. This system
helps the party filing for registration of a Trademark to obtain protection of his trademark across
multiple nations by filing a single application with the filing party‟s own national/ regional Trademark
Office.

Certain recent decisions have also reaffirmed faith in the Indian intellectual property litigation
machinery. In the case of M/s Gillette India Ltd v. M/s Harbans Lal Malhotra& Sons Pvt. Ltd.
(ORA/51 & 52/2005/TM/KOL AND M.P.No.392/2012 IN ORA/51/2005/TM/KOL), the
Delhi Circuit Bench of IPAB, Chennai on June 21, 2013 adjudicated on a matter involving the
usage of the Trademark„CHAMPION‟ for razor blades. The IPAB stressed the need for
international business ethics to be followed, and prevented the applicants from curbing the economic
activities of a relatively minor business entity. Similarly, in a path–breaking development with regard
to the functioning of the patent system in India, the Patent Office has, for the first time ever, brought
into the public domain all Statements of Working which were filed by each and every patentee in
2012. Under Section 146 of the Patents Act, 1970; the Controller General is empowered to demand
from the patentee a Statement (specified under Form 27) regarding the commercial working of the
patent. This step is bound to go a long way in increasing the efficacy and the transparency of the
patent system in India.
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Intellectual Property Right (IPR) in India was imported from the west. The Indian Trade and
Merchandise Marks Act 1884, was the first Indian Law regarding IPR. The first Indian Patent Law was
enacted in 1856 followed by a series of Acts being passed. They are Indian Patents and Designs Act in
1911 and Indian Copyright Act in 1914. Indian Trade and Merchandise Marks Act and Indian
Copyright Act have been replaced by Trade and Merchandise Marks Act 1958 and Copyright Act 1957
respectively.

In 1948, the Indian Government appointed the first committee to review the prevailing Patents and
Designs legislation. In 1957, Government appointed Justice Rajagobala Ayyangar Committee (RAC)
to revise the Patent Law. Rajagobala Ayyangar Committee submitted its report on 1959, the report
tried to balance the constitutional guarantee of economic and social justice enshrined in the preamble
of the constitution. This report provided the process for Patenting of drugs. This report outlined the
policy behind the Indian Patent system.

The theory upon which the patent system is based on, i.e., an opportunity of acquiring exclusive rights
in an invention, stimulates technical process in four ways.
Encourages research and invention.
Induces an inventor to disclose his discoveries.
Offers award for the expenses of developing inventions.
Provides an inducement to invest capital in new lines of production which might not appear
profitable.
Based on the Rajagobala Ayyangar Committee report, a Bill was introduced in the year 1965 and the
bill was passed in the Lok Sabha but it lapsed in the Rajya Sabha and once again lapsed in Lok Sabha
in the year 1966 due to dissolution of Lok Sabha. But it was reintroduced in 1967 and passed in 1970;
the draft rules were incorporated in Patent Act and passed in the year 1971.
The following steps are being suggested with particular reference to the situation in India regarding
IPR in the national policy making.

Constitute an integrated single window National IPR commission to deal with IPR policy issues;
Integrate national technology planning with IPR and trends in international technology trade;
Implement a formal national IPR literacy mission;
Set-up IPR training institutes to prepare technically qualified attorneys;
Introduce an enabling national taxation policy to encourage innovation, building of IPR portfolio and
its utilization in technology transfer and trade;
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Urgently modernize the IPR administrative structures in the country;

Improve infrastructure for access and effective use of IPR information. There is an urgent need to
harmonize the patent classification system to ease and optimize processes in patent searching;

Re-structure the judiciary and enforcement machinery for professional and speedy response to IPR
issues;
Training of corporate and institutional managers on effective management of IPR;
Standardize models for valuation and audit of IPR;
Evolve national taxation polices of development, use and transactions linked to IPR.

1.1Importance of IPR in Developing Countries

There has been at times considerable debate on the impact on developing countries of tightening Intellectual
Property Rights. The potential significance of IPR in developing countries is according to the relative
intensity of their technological activity. Developing countries went along with the TRIPS agreement for a
variety of reasons, ranging from the hope of additional access to agricultural and apparel markets in rich
nations, to an expectation that stronger IPR would encourage additional technology transfer and innovation.
However, the promising long term benefits are uncertain and costly to achieve in many nations, especially in
the poorest countries. There are reasons to believe that the enforcement of IPRs has a positive impact on
growth prospects. On the domestic level, growth is spurred by higher level of innovations although this result
tends to be fairly insignificant until countries move into the middle income bracket. It also notes that the growth
effects of IPRs are at different times and in different regions of the world, countries have realized high rates of
growth under varying degrees of IPR protection. There are certainly short term costs for poor countries from
stronger IPRs, like higher prices for technology and protected products.
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RESEARCH AND METHODOLOGY

Introduction
This research is essentially a systematic enquiry, seeking facts through objective unbiased verifiable
methods, in order to discover the relationship between and among them and to deduce from them a
broad understanding of the nature and ramifications of the Constitutional provisions that are at the heart
of this study.

Reason for Doctrinal Research method used in this study.

There is a lot of false propaganda which makes the common man have a skewered idea of the legal
framework of the Intellectual Property Rights. This causes a problem in the non-doctrinal research
because such type of research depends on the feedback of the interviews and statistical data. There is a
wide prevalence of misinformation in India and especially Intellectual Property Rights.

There are numerous approaches to the IPR which makes it ironic considering that there is no ambiguity
in the Rights; therefore it is open to interpretation. There are too many grossly misleading and ultimately
incorrect assumptions in regard to the Rights and its scope. This research is purely doctrinal. Since IPR
and its ramifications are a burning issue of the times, passions run high and people tend to give opinion
and even those who wish to be objective, tend to form their opinion based upon current developments,
which is helping in the development of the Intellectual property Regime in INDIA.
Therefore, my contribution to this field of study will be most accurate and enriching, if I go about the
study based on primary data. A doctrinal research study, means a research study that has been carried
out on a legal proposition or propositions by way of analyzing the existing statutory provisions and
cases by applying one’s reasoning power.
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Recent Development in Intellectual Property Regime – A

Critical Analysis
Introduction
Intellectual property rights are the rights given to persons over the creations of their minds and give the
creator an exclusive right over the use of his/her creation for a certain period of time

Intellectual property is the key to India‟s expanding knowledge economy. Having grown in leaps and
bounds, the Indian IP industry is fast reaching new heights. With the advent of the new knowledge
economy, the old and some of the existing management constructs and approaches would have to
change. From striking a balance between IP rights protection and public policy to promoting IP rights
education, Alfred Marshall1 believed that with advancements in technology, commodities alone would
no longer be the primary factor in determining the real value of money: "But if inventions have
increased man's power over nature very much, then the real value of money is better measured for
some purposes in labour than in commodities." 2 Today, the intrinsic labour value exists in the form of
knowledge. The knowledge economy places a tag of urgency on understanding and managing
knowledge based assets such as innovations and know-how. Intellectual property rights have become
important in the face of changing trade environment which is characterized by the following features
namely global competition, high innovation risks, short product cycle, need for rapid changes in
technology, high investments in research and development, production and marketing and need for
highly skilled human resources. India is a member of the World Trade Organisation‟s and a signatory
to the Trade Related Aspects of Intellectual Property Rights Agreement. In the last few years India has
been in the process of modifying its Intellectual Property laws to ensure adequate protection to
Intellectual Property owners. Indian legislature has made efforts to implement better IP rights
enforcement and protection. On the other hand, the judiciary has not been far behind in contributing to
the development of IP rights. Litigation regarding trademarks, copyrights and patents has set new
precedents, with the Indian courts adopting international principles and rulings to protect IP rights in
order to deter infringers. Overall, the progress over the last year has set new milestones in IP rights for
the challenging times ahead.

1
Ankit Prakash , India: IP Value 2009: Recent Developments In Intellectual Property, available at
http://www.mondaq.com/article.asp?articleid=76022 (visited on 27th October,2019).

2
Id.
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Evaluation of an International Intellectual Property Regime

The foundation of International Intellectual Property Protection was created in the 19th century at
various Congresses in Vienna and the rest of Europe. The protection of Industrial Property was created
in Paris Convention in the year 1883. Patents, Trade Marks and Industrial designs were the three main
properties that were granted protection in this convention. In 1998, India became a member of the
Paris Convention.

In 1886, International Copyright Act was passed (resulting in the framing of the Berne Convention for
the protection of literary and artistic works). The Paris Convention marked the beginning of the
International Trade Marks Protection laws and introduced the concept of a well known mark. Special
unions and arrangements have been created for the countries who are members of the Paris Convention.
Madrid agreement is one special arrangement that was created to standardize the trademarks. Madrid
agreement embodies the fundamental principles outlined in the Paris Convention.

The General Agreement on Tariffs and Trade (GATT) was negotiated during the UN Conference on
Trade and Employment and was the outcome of the failure of negotiating governments to create the
International Trade Organization (ITO). GATT was formed in 1949 and lasted until 1993, when it was
replaced by the World Trade Organization in 19954.

In 1960 the World Intellectual Property Organization was created. It governs the Paris and Berne
Convention. In 1967 World Intellectual Property Organization (WIPO) was established by these
conventions. In 1977 World Trade Organization (WTO) was created and become an important
international organization for the development and understanding of IPR; successor to the General
Agreement on Tariffs and Trade.

The creation of the United Nations Conference on Trade and Development was based on the concerns
of developing countries over the international market, multi-national corporations, and great disparity
between developed nations and developing nations. The United Nations Conference on Trade and
Development was established in 1964 in order to provide a forum where the developing countries could
discuss the problems relating to their economic development. The organization’s goals are to
maximize the trade, investment and development opportunities of developing countries and assist them
in their efforts to integrate into the world economy on an equitable basis5.

When world trade began to expand dramatically in the 1960s, national governments began to realize
the need for a global set of standards and rules to harmonize national and regional regulations, which
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until then governed. The United Nations Commission on International Trade Law (UNCITRAL) was
established by the United Nations General Assembly in 1966 to promote the progressive harmonization
and unification of international trade law6.

The importance of intellectual property in India is well established at all levels- statutory,
administrative and judicial. India ratified the agreement establishing the World Trade Organization
(WTO). This Agreement, inter-alia, contains an Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) which came into force from 1st January 1995. It lays down the minimum
standards for protection and enforcement of intellectual property rights in member countries which are
required to promote effective and adequate protection of intellectual property rights with a view to
reducing distortions and impediments to international trade. The obligations under the TRIPS
Agreement relate to provision of minimum standards of protection within the member countries legal
systems and practices. The IPR scene in India has undergone a dramatic change since 1995 with the
creation of various tools of Intellectual Property7,8.

IPR is already a part of the strategic options in the knowledge industry9. In order to ensure sustained
growth, enhanced profits and market leadership, many corporations have designed their project
management system for

Optimized use of inter/intra knowledge base

Strategic management of IPR

External channels for knowledge and inventions as inputs

Internal expertise to manage research and collaborations

Clarity on knowledge ownership issues through mutually beneficial licenses

Pooling of IPR as in the case of several companies who have formed patent pools of their DVD
patents for mutual benefits

The emerging scene in the future will seek positive linkages between enhancing competition in society
on one hand and establishing legal ownership of innovations on the other. Strongly inter-knitted
societal, moral and ethical issues are already influencing approaches to international trade involving
technology management, ownership of knowledge and business processes
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Development of Intellectual Property Law in India

Intellectual Property Right (IPR) in India was imported from the west. The Indian Trade and
Merchandise Marks Act 1884, was the first Indian Law regarding IPR. The first Indian Patent Law was
enacted in 1856 followed by a series of Acts being passed. They are Indian Patents and Designs Act in
1911 and Indian Copyright Act in 1914. Indian Trade and Merchandise Marks Act and Indian
Copyright Act have been replaced by Trade and Merchandise Marks Act 1958 and Copyright Act 1957
respectively3.

In 1948, the Indian Government appointed the first committee to review the prevailing Patents and
Designs legislation. In 1957, Government appointed Justice Rajagobala Ayyangar Committee (RAC)
to revise the Patent Law. Rajagobala Ayyangar Committee submitted its report on 1959, the report
tried to balance the constitutional guarantee of economic and social justice enshrined in the preamble
of the constitution. This report provided the process for Patenting of drugs. This report outlined the
policy behind the Indian Patent system.

The theory upon which the patent system is based on, i.e., an opportunity of acquiring exclusive rights
in an invention, stimulates technical process in four ways.

Encourages research and invention.

Induces an inventor to disclose his discoveries.

Offers award for the expenses of developing inventions.

Provides an inducement to invest capital in new lines of production which might not appear
profitable.

Based on the Rajagobala Ayyangar Committee report, a Bill was introduced in the year 1965 and the
bill was passed in the Lok Sabha but it lapsed in the Rajya Sabha and once again lapsed in Lok Sabha
in the year 1966 due to dissolution of Lok Sabha. But it was reintroduced in 1967 and passed in 1970;
the draft rules were incorporated in Patent Act and passed in the year 1971.

The following steps are being suggested with particular reference to the situation in India regarding
IPR in the national policy making.
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Constitute an integrated single window National IPR commission to deal with IPR policy issues;

Integrate national technology planning with IPR and trends in international technology trade;

Implement a formal national IPR literacy mission;

Set-up IPR training institutes to prepare technically qualified attorneys;

Introduce an enabling national taxation policy to encourage innovation, building of IPR portfolio and
its utilization in technology transfer and trade;

Urgently modernize the IPR administrative structures in the country;

Improve infrastructure for access and effective use of IPR information. There is an urgent need to
harmonize the patent classification system to ease and optimize processes in patent searching;

Re-structure the judiciary and enforcement machinery for professional and speedy response to IPR
issues;

Training of corporate and institutional managers on effective management of IPR;

Standardize models for valuation and audit of IPR;

Evolve national taxation polices of development, use and transactions linked to IPR.

In recent years the Indian economy has opened up and grown dramatically. As a result, India‟s
prominence in the global economy has increased significantly, sparking huge interest from foreign
investors.3 In almost all industry sectors, multinational companies are now doing business in India. As
a result, India‟s intellectual property laws and enforcement regime are being brought into the limelight
and subjected to scrutiny for their adequacy and compliance with established global standards.

The development of intellectual property in India has always been the heated debate and keen interest
around the world. In recent years India has made vigorous progress not only in implementing its
obligations under the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual
Property Rights , but also in developing its own IP regime and to balance the trade-off between
monopoly rights and free access to knowledge.
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On October 15, 2010 Federation of Indian Chambers of Commerce and Industry had launched an Anti
Piracy Coordination Cell with the approvals of Government of India. In order to curb piracy the three
important pillars i.e. the legislation, enforcement and awareness needs to be properly dealt with. The
cell will act as a platform where stakeholders can interact. The four main segments i.e. the film
industry, music industry, publishing and software industry are getting adversely affected by piracy.4

Justice Muralidhar, on November 26,2010 had passed the rule stating that Certification of CD’s
and DVD’s henceforth to be made compulsory, i.e. the manufacturers, distributors and sellers of
cinematographic films to get their CDs/ DVDs certified by the Central Board of Film and certification
(CBFC) before selling them in the market. The decree is only prospective and not retrospective, hence
proper caution was given to the officials not to file cases against films or materials distributed or sold
before this dictum.5

Geographical Indication tags are given to goods based on their geographical uniqueness. GI tag in
general, is thus a certification of uniqueness of a product either by its origin, process or availability.
These tags usually help in enhancing the marketability.

3Rouse , IP environment in India ,available at-http://www.inhouselawyer.co.uk/index.php/intellectual-property/7552-ip-

environment-in-india (visited on 28th October, 2019).

4
Mr. T.C James, Consultant FICCI IPR Division & Former Director, Department of industrial Policy & Promotion,
Government of India, available at http://www.ficci.com/sector/24/Add_docs/ipr-dec2010.pdf (visited on 2nd November
2019)

5
http://ipr.indlaw.com/guest/displaynews.aspx?092706d9-f478-43de-8ea0-dd7dfc735681,also see to

http://www.ficci.com/sector/24/Add_docs/ipr-dec2010.pdf (visited on 2nd November 2019).

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In September,2010 Geographical Indications Registry in Chennai has recorded GI for a record number
of products which includes Central Travancore Jaggery, Wayanad Gandhakasala Rice and Jeerakasala
Rice from Kerala, Champa Silk Saree and Fabrics from Chhattisgarh, Kota Doria (Logo) Handicraft
from Rajasthan, Nashik Grapes from Maharashtra, Bikaneri Bujiya from Rajasthan, Phulkari from
Punjab6, Surat Zari Craft from Gujarat, Cheriyal Painting and Pembarthi Metal Craft from Andhra
Pradesh.7 In 2010 alone about 37 products have received GI tags which include the Bhadohi Carpets
from Varanasi. The All India Carpet Manufacturers Association (AICMA), Great Bhadohi Handicraft
Society and the office of Joint Director of Industries are the applicants for GI over the Bhadohi
carpets.8

The government has already approved the proposal to establish a National Institute of Intellectual
Property Rights Management at Nagpur.9 The primary functions of the institute include training,
education and research, in addition to acting as a tank on key IP policy matters. The government has
already put forward plans to expand and modernise further the IP offices in order to make them world
class.10

The International Searching Authority and International Preliminary Examining Authority is to

provide reports on a unique search and examination reports on a variety of inventions for patenting.
India has been discussed in the plan to get recognition for Indian Patent and Trademark Office as
International Searching Authority and International Preliminary Examining Authority under the Patent
Cooperation Treaty Office. 11

Formation of Mashelkar Committee:-Government of India has created a group of technical experts to

examine the following issues in patent law: whether it is compatible with TRIPS to limit the granting
of a patent medicine applies only to new chemical entities or new medical device and whether it is
compatible with the TRIPS Agreement excludes the patenting of micro-organisms. 12

6
GI Status for Phulkari , Times of India, Jan.19, 2011.
7
Daniel P George, Scotch whisky, Karnataka's Byadgi Chilli get GI tag, Times Of India, Feb 16, 2011.
8
Binay Singh, Many artifacts of region await GI Status, Times of India, Jan 13, 2011
9
Intellectual property and its importance to development in india, available at http://collegeproperty.info/intellectual-
property-and-its-importance-to-development-in-india.html (visited on 1st feburary,2011).
10
Anand Pravin and Sumeera Raheja, “India: The Changing Face Of Intellectual Property”, available at
http://www.buildingipvalue.com/08_AP/203-206Anand.pdf (visited on 1st November 2019).
11
Anand Pravin and Sumeera Raheja ,Supra note 10.
12
Supra note 10.
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10th August 2010, the Parliament, has passed the Trademarks Amendment Bill, 2009. The only
recommendation that was not agreed to by the Committee was the new Section 36H13. The Bill would
implement the Madrid protocol in India and the Madrid protocol offers trademark owners the
opportunity to obtain international protection for their domestic trademarks with the filing of one
single application. Further, the bill prescribes a period of 18 months for the grant of an application to
class 43, 44, 45. Another change in insertion of proviso to Rule 62(3)16

20th May 2010, , The Trade Mark Rules, 2002 have been amended and Trade Mark (Amended) Rules,
2010 have come into force. 15The major change is amendment in Fourth Schedule of the TM Rules i.e.
adoption of all 45 international classes. Earlier international classes 43, 44 and 45 were merged in
class 42 in India, but from May 20, 2010 separate application has to be filed for services covered
under International class 43, 44, 45. Another change in insertion of proviso to Rule 62(3)16

The Union government introduced the Copyright Amendment Bill, 2010, in the Rajya Sabha that
seeks to amend the Copyright Act, 1957. The Bill, the most comprehensive attempt to amend the 1957
Act, will have far-reaching implications for the music and film industry.

The Union government introduced the Copyright Amendment Bill, 2010, in the Rajya Sabha that
seeks to amend the Copyright Act, 1957. The Bill, the most comprehensive attempt to amend the 1957
Act, will have far-reaching implications for the music and film industry.

13
“shall apply as far as possible the same trade description as to the standard of quality of its goods or services in all the
Contracting Parties granting the protection.”

14
See SpicyIP Guest Post: The Trademarks (Amendment) Bill 2009 - Implementing the Madrid Protocol , Rajya Sabha
passes the Trademark Amendment Bill, 2009 after a spirited debate, available at http://spicyipindia.blogspot.com (visited
on 28th October,2019).

15
IP Environment in India, available at http://www.inhouselawyer.co.uk/index.php/intellectual-property/7552-ip-
environment-in-india, ( visited on 4th November 2019).

16
issuance of copy/ duplicate registration certificate without any additional cost, if the Registrar is satisfied on a claim of
Registered Proprietor supported by evidence that registration certificate has not been received by him. But further proviso
specifies that no such copy/ duplicate registration certificate shall be issued where such request is received after expiry of
time limit for renewal or registration or restoration of the registered trade mark.
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It seeks to give independent rights to lyricists, composers and singers as the authors of literary and
musical works in films. If the Bill is enacted, authors, especially lyricists, will get royalties and other
benefits from the commercial exploitation of their work. Under the present copyright regime, the right
to receive royalty vests with the music firms and producers.

The draft Bill envisages a change in the role of directors. “After the commencement of the Copyright
Amendment Act, 2010, the producer and the principal director shall be treated jointly as the first
owner of copyright,” according to the draft.17 Under the present law, only the producer enjoys such
rights. Further, the term of the copyright for films can be extended from 60-70 years provided the
producer enters into anagreementwiththedirector.18 The Bill also seeks to introduce statutory licensing
to broadcasting organizations to access literary and musical works and sound recordings. A statutory
licence or compulsory licence is a copyright licence to use content under reasonable and non-
discriminatory terms. 19

17 http://jurisonline.in/2010/09/copyright-amendment-bill-2010-an-analysis (visited on 17th October,2019)

18
Copyright Amendment Bill 2010. Available at
http://www.prsindia.org/uploads/media/Copyright%20Act/The%20Copyright%20Bill%202010.pdf (visited on 2nd
November,2019)
19
http://spicyipindia.blogspot.com/2010/12/copyright-amendment-bill-2010.html (visited on 17th October,2019)
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Transition Period
India, as a developing country, had a transition period of five years (with effect from 01 January,
1995) till January 01, 2000 to apply the provisions of the Agreement. An additional transition period of
five years, i.e., till January 01, 2005, is also available for extending product patent protection to areas of
technology not protected so far. This would be mainly in the areas of pharmaceuticals and agricultural
chemicals.

Patents

Patent is an intellectual property right relating to inventions and it is the grant of exclusive rights, for a
limited period, provided by the Government to the patentee, in exchange of full disclosure of his
invention and excluding others, from making, using, selling, importing the patented product or
processes producing that product for any purposes. The purpose of this system is to encourage
inventions by highlighting their promotion and utilization so as to contribute to the development of
industries, which in turn, contributes to the promotion of technological innovations and to the transfer and
dissemination of technology. Under the system, Patents ensure property rights for the invention for
which patent have been granted, which may be extremely valuable to an individual or a company.
Patents shall be available and patent rights enjoyable without discrimination as to the place of
invention, the field of technology and whether products are imported or locally produced.

The trends of patents during the last 25 years in India have their roots in the formulation and
implementation of the Indian Patent Act 1970, which became effective from April 20, 1972. There
was a strategic shift from the liberal features of the Indian Patents and Designs Act 1922 to the new
regime which introduced restrictive changes related to patenting of inventions especially in the areas
of chemicals, pharmaceuticals, agrochemicals and foods. The granting of patents for inventions
claiming substances intended for use or capable of being used as, food, medicine or drug or all
substances resulting from chemical processes was withdrawn. The conditions for compulsory licensing
were also made fairly liberal including the introduction of the concept of “license of right” for patents
related to drugs, pharmaceuticals and foods.
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Copyright
The copy right ensures that computer programs will be protected as literary works under the Berne
Convention and outlines how databases should be protected. It also expands international copyright
rules to cover rental rights. Authors of computer programs and procedures of sound recordings must
have the right to prohibit the commercial rental of their works to the public. A similar exclusive right
applies to films where commercial rental has led to widespread copyright, affecting copyright-owners
potential earnings from their films. The performers must also have the right to prevent unauthorized
recording, reproduction and broadcast of live performances for not less than 50 years. Producers of
sound recordings must have the right to prevent the unauthorized reproduction of recordings for a
period of 50 years.

India’s copyright law, laid down in the Indian Copyright Act, 1957 as amended by Copyright
(Amendment) Act, 1999, fully reflects the Berne Convention on Copyrights, to which India is a party.
Additionally, India is party to the Geneva Convention for the Protection of rights of Producers of
Phonograms and to the Universal Copyright Convention. India is also an active member of the World
Intellectual Property Organization (WIPO), Geneva and UNESCO.

The copyright law has been amended periodically to keep pace with changing requirements. The
recent amendment to the copyright law, which came into force in May 1995, has ushered in
comprehensive changes and brought the copyright law in line with the developments in satellite
broadcasting, computer software and digital technology. The amended law has made provisions for the
first time, to protect performer’s rights as envisaged in the Rome Convention.

Several measures have been adopted to strengthen and streamline the enforcement of copyrights.
These include the setting up of a Copyright Enforcement Advisory Council, training programs for
enforcement officers and setting up of special policy cells to deal with cases relating to infringement of
copyrights
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Trademark

Trade marks have been defined as any sign, or any combination of signs capable of distinguishing the
goods or services of one undertaking from those of other undertakings. Such distinguishing marks
constitute protectable subject matter. The Agreement provides that initial registration and each
renewal of registration shall be for a term of not less than 7 years and the registration shall be renewable
indefinitely. Compulsory licensing of trade marks is not permitted. Keeping in view the changes in
trade and commercial practices, globalization of trade, need for simplification and harmonization of
trade marks registration systems etc., a comprehensive review of the Trade and Merchandise Marks
Act, 1958 was made and a Bill to repeal and replace the 1958 Act has since been passed by
Parliament and notified in the Gazette on December 30, 1999. This Act not only makes Trade Marks
Law, TRIPS compatible but also harmonizes it with international systems and practices. Work is
underway to bring the law into force.

Geographical Indications

Geographical indications of goods are defined as that aspect of industrial property, which adverts to
the geographical indication referring to a country or to a place, situated there is as being the country or
place or origin of that product. The given product should have a specific geographical origin and
posse’s qualities or a reputation due to that place of origin. A place name is sometimes used to identify
a product. This geographical indication not only refers to where the product was made, but more
importantly, it identifies the product’s special characteristics which are the result of the products origin.
Using the place name when the product was made elsewhere or when it doesn’t have the usual
characteristics can mislead consumers, and it can lead to unfair competition. Some exceptions are
allowed, for example if the name is already protected as a trademark or if it has become a generic term.

Industrial Design

An industrial design is that aspect of a useful article, which is ornamental or aesthetic. It may consist
of three-dimensional features such as the shape or surface of the article, or two- dimensional features
such as patterns, lines or color.
18| P a g e

Industrial design is applied to a wide variety of products of industry or handicraft; from watches,
jewellery, fashion and other luxury items to industrial and medical implements; from house ware,
furniture and electrical appliances to vehicles and architectural structures, from practical goods and
textile designs to leisure items, such as toys and pet accessories. A new designs law repealing and
replacing the Designs Act, 1911 has been passed by Parliament in the Budget Session, 2000. This Act
has been brought into force from May 11, 2001.

Layout Designs of Integrated Circuits

A “layout-design (topography)” is defined as the three- dimensional disposition, however

expressed, of the elements, at least one of which is an active element, and of some or all of the
interconnections of an integrated circuit, or such a three- dimensional disposition prepared for an
integrated circuit intended for manufacture. The obligation to protect layout-designs applies to such
layout-designs that are original in the sense that they are the result of their creators own intellectual
effort and are not commonplace among creators of layout-designs and manufacturers of integrated
circuits at the time of their creation. The exclusive rights include the right of reproduction and the right
of importation, sale and other distribution for commercial purposes.

Protection of undisclosed information

The protection must apply to information that is secret, which has commercial value because it is a
secret and that has been subject to reasonable steps to keep it a secret. That does not require undisclosed
information to be treated as a form of property, but it does require that a person lawfully in control of
such information must have the possibility of preventing it from being disclosed to, acquired by, or
used by others without his/her consent in a manner contrary to honest commercial practices. “Manner
contrary to honest commercial practices” includes breach of contract, breach o
19| P a g e

Recent Developments
Besides to the most recent developments, in order to bring progressive changes towards a free market
society, rapid liberalization of international trade practices and demonstrating its commitments to the
WTO under the Trade Related Intellectual Property Rights Agreement (TRIPS), the Government of
India undertook a series of steps, to conform India IP legislation to acceptable international standards.
The regulations relating to all forms of IP have been amended or reissued in recent years, main mainly
in response to India’s accession to the WTO. Here are some of these developments in IP legislation in
India.

1.Trademark law brought at par with international practices

To bring Indian trademarks law in line with international practices and to ensure implementation of
India's commitments under the TRIPS Agreement, India replaced the Trade and Merchandise Marks
Act, 1958, with the Trade Marks Act, 1999. Some changes under the 1999 Act are as follows:

* Service marks, for the first time, made protectable through registration.

* The definition of "trade mark" now includes graphic representations, shapes, packagings and
combinations of colours, thereby widening IPR protection.

*The procedure for registration of trademarks expedited by removing the earlier system of Part A and
B registration. In addition, only a single application need now be filed for registration of a trademark
in different classes. The 1999 Act also provides for the classification in conformity with recognized
International Classification of Goods and Services.

* The period of registration and renewal has been increased from seven to ten years.

* The definition of "trademark infringement" has been broadened to give protection beyond the use of
identical/deceptively similar marks in relation to goods for which they are registered.

An action for infringement of trademark/passing-off can be filed in a district court within whose
jurisdiction the plaintiff (trademark proprietor) resides or carries on business, as against the earlier law
which required the suit to be filed at the defendant's place.
20| P a g e

* Under the new law, both registered and unregistered trademarks can be assigned with or without the
goodwill of the business.

Recently, by way of the Trademarks (Amendments) Rules, 2014, the fee with respect to trademark
filing has been increased in certain cases. The fee for an expedited examination have also been
increased. Further, the Trade Marks Registry recently issued an Office Order little with respect to
alterations that may be made to an application for trademark registration. This Order enlists certain
‘substantial alterations’, which would not be allowed; and other alterations, primarily clerical in nature
that would continue to be accepted by the Registrar.

2. Protection to Geographical Indications Provided

India has enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 (the
GIG Act). The GIG Act provides for registration and better protection of geographical indications
relating to goods to help identify the place of origin of goods, quality, reputation and other distinctive
characteristics of these goods. The GIG Act now helps in protecting unique

Indian products linked to some geographical region of India, such as Basmati Rice, Darjeerling Tea,
Alphonso Mangoes, Malabar Pepper, Cardamom and Hyderabad Grapes, which are all well known in
the international market. For many years, these products have been exported on a regular basis,
demonstrating India's reputation of high quality of these products and, therefore, require such
protection. Under the GIG Act, assignment of geographical indications is prohibited, being public
property. The GIG Act also lays down provisions for infringement actions. The GIG Act helps prevent
geographical indications of goods becoming generic which may otherwise lead to a loss of
distinctiveness and consequently loss of protection.

3. Copyright Law Modified

The 2012 amendments in copyright law, which were made to make Indian copyright law compliant
with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty,
introduced technological protection measures, ensured that fair use survives in the digital era by
providing special fair use provisions, made many author-friendly amendments, special provisions for
disabled, amendments facilitating access to works and other amendments to streamline copyright
administration.
21| P a g e

The Government is considering further amendments to the Indian Copyright Act to help deter
continuing piracy. Future amendments would provide for greater deterrents against infringement
through more effective legislative and administrative frameworks. These amendments would also
offer the police wider powers to conduct secret raids, seize and destroy infringing products, provide
faster criminal proceedings and increased punishment for piracy.

4. Patents Law more aligned with TRIPS

Modifications in Indian patent laws have been made in accordance with TRIPS by widening the list of
inventions not patentable, incorporating greater rights of the patentee, reversing the burden of proof in
an infringement suit on process patents and creating a uniform period of patent protection of twenty
years for all categories of invention.

During 2014, the Indian Patent Office released guidelines pertaining to issuance of pharmaceutical
patents. These guidelines primarily incorporate features of various court decisions so as to assist the
Patent Office in establishing uniform standards of patent grant/examination. These guidelines are
expected to bring in uniformity with regard to examinations of the patent applications across all Patent
Offices in India and by different responsible officers, in addition to giving to the inventors and
corporates much desired certainty on how their application will be examined by the Indian Patent
Office. Furthermore, in the recent past, various administrative and procedural mechanisms have been
improved in the field of intellectual property law. The infrastructure of the Indian Patent Office has
been improved greatly, so as to develop facilities for proper management of International Searching
Authority/International Preliminary Examining Authority operation under the Patent Cooperation
Treaty.

5. Protection for Plant Varieties and Rights of Farmers established

India, in giving effect to the provisions of the TRIPS Agreement, enacted the Protection of Plant
Varieties and Farmers Rights Act, 2001, to provide for the establishment of an effective system for
protection of plant varieties. The 2001 Act recognizes and protects the rights of farmers for their
contributions made in conserving, improving and making available plant genetic resources for the
development of new plant varieties. A variety that conforms to the criteria of novelty, distinctiveness,

uniformity and stability is registrable under law. The 2001 Act provides for a total eighteen years
protection for trees and vines and fifteen years for other plants.
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6. New Designs Law

India enacted a separate law for the protection of copyrights in an industrial design. The Designs Act,
2000 repealed the earlier Designs Act, 1911. The new law protects proprietors of novel or original
designs and enforces those rights against infringers. The new law incorporates the definition of the
term "original" to specify what is a registrable design. In relation to a design, the term "original"
includes designs, which though old in themselves, are new in their application. Any design which is
new or original, not previously published in any country, whether India or outside India, and which is
not contrary to public order or morality is registrable under the Act. The new Act amplified the
definitions of "article" and "design" to bring them in conformity with internationally accepted
definitions for providing wider protection. Designs do not need to be registered in more than one class,
which was not the case under the earlier law In view of India's accession to the Paris Convention and
India being a signatory to the WTO, the right of priority has been extended to countries under the
Paris Convention. The initial period for copyright in registered designs has been extended from 5 to 10
years. The new Act removes the earlier provisions regarding period of secrecy of the design for two
years and enables the public to inspect any registered design during initial period of existence of the
registration.

7. Integrated Circuits Provisions adopted

In compliance with obligations under the TRIPS Agreement, India has enacted the Semiconductor
Integrated Circuits Layout-Design Act, 2000. This Act provides for registration of original, inherently
distinctive and not yet exploited layout-designs. Any misuse of a registered layout-design can be
prevented by way of an infringement action. The Act provides a term of protection for 10 years.
Although the Indian IP laws are still in the stages of development but the same are very much in
conformity with the international IP laws as India is a signatory to international conventions and
treaties including Paris Convention for the Protection of Industrial Property, Berne Convention on
Copyright and TRIPS Agreement. Generally speaking, other than period of protection available and
the time and cost taken to register an IP, there are but a few major differences between Indian and
European IP laws and even those primarily relate to less significant procedural aspects. However,
there have been significant concerns over IP enforcement, with a backlog of cases at both the civil and
criminal courts and IP Offices, and this is the area where Indian needs to work
23| P a g e

India's Laws Evolving To Protect IP Domestically

India has adopted a unique set of legislations for IPR in line with prevailing socio economic
condition of the country, not only they are exhaustive but they have been interpreted by judiciary in
such a way as to balance the rights of the individual as well as public on the other hand. IP laws are
not enforced internationally they are for the nation's own interest that is the fundamental principles in
Berne and TRIPS and thus government has the freedom to choose their IP regime. The Government
of India has taken several measures to streamline and strengthen the intellectual property
administration system in the country These remedies include civil, criminal and provisional
remedies. when a party proposed to take a civil action against any infringer, it has to file a Suit for
infringement or passing off in a High Court or a District Court. Upon a successful suit for patent
infringement, the court will order an injunction restraining the infringer from working the patented
invention for the entire term of the patent. In addition, the court will either order the infringer to pay
damages for infringing the patent or give account of the profits. The holder of an exclusive license is
also entitled to damages or account of profit. Further, the court has the power to seize, confiscate
and destroy the infringing goods without payment of any compensation. If the infringer can show
that the infringement was innocent, the court will not order the payment of either damages or account
of profits. The remedies of injunction and damages/account of profits are also available for trade
mark and copyright violation. In addition to these civil remedies, the court has in the case of Time
Incorporated v. Lokesh Srivastava,20 awarded punitive damages for infringement of „Time‟ trade
mark. The courts are not averse to considering foreign jurisprudence in arriving at a conclusion and
in this case, American jurisprudence regarding punitive damages was applied.

20
Time Incorporated v Lokesh Srivastava (2005) 30 PTC 3
24| P a g e

In another case, the court allowed Whirlpool Corporation to recover damages against a trade mark
owner who had wrongfully registered the „Whirlpool‟ mark in India.21 A similar decision was
reached in a case involving Allegan Incorporation where the court recognized that in case of passing
off of an unregistered trade mark, worldwide reputation of the product/mark was an important
factor.22 The court has also decided that the premises of an alleged infringer may be searched if the
claimant can show the court that abstention from such a search may result in the destruction of the
infringing goods. This court can pass such an order even in an ex parte proceeding. Thus, the Indian
courts have donned the mantle of protecting IP rights in India. The willful disobedience of any
judgment of the Court amounts to contempt of court and it attracts penal consequences under the
Contempt of Court Act, 1971.
There are no criminal sanctions for infringement of patents. In respect of copyright and trade mark
violation, the court can order imprisonment of the infringer for a term ranging from six months to
three years. In addition to imprisonment a fine is imposed upon the violator. In case of copyright, a
repeat violation can attract even more severe punishments.

The Patents Act, 1970 grants power to the courts for making a declaratory judgment as to non-
infringement. The validity of the claims contained in the patent cannot be the subject matter of such
proceedings. Thus, the declaration of non-infringement does not affect the validity of the patent in
question. Further, the court has the power to grant relief by way of a declaration to the effect that the
allegations of infringement of patent made by a person are unjustified. Such declaratory judgments are
also available under the trade mark and copyright laws.

The courts can also order interim relief pending final settlement of the matter. A court may order is
the grant of an interim injunction whereby the defendant may be restrained from using the plaintiff‟s
invention, or mark or work until hearing of the suit or further order.

Criminal action: In so for as criminal actions are concerned, in case the counterfeiting goods are
available on a large scale in the market, and a Mark, or a copyright is infringed at different places,
generally the clients is advised to file a Criminal Complaint before the Court of Metropolitan
Magistrate and obtain Search & Seizure Orders against Unknown persons/firms etc.

21
N.R Dongre v. Whirlpool Corpn & Ors.(1996) 5 SCC 174

22
Milmet Oftho Industries and Ors.v.Allergan Inc (2004) 12 SCC 624.
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Once Search & Seizure Orders are obtained from the Court, the raids can be got conducted with the
help of the Police and fake/duplicate goods can be recovered and seized by the police and the same
remain in Police custody. Criminal action leads to criminal prosecution.

Further, provisional measures, such as injunctions and ‘ Anton Piller’ orders, are available through the
Indian courts to stop infringement and to contain any damages.

Civil proceedings against piracy have been quite effective - a result unique in the global enforcement
against copyright piracy. In keeping with international practice and in order to harmonies IP
legislation with the Customs Act 1962, on May 8 2007 the Ministry of Finance and the Department of
Revenue implemented the IP Rights (Imported Goods) Enforcement Rules 2007. The new rules give
the Customs Authority the power to adjudicate on issues involving the import or export of infringing
products. Under Rule 3, if a rights holder learns of the import of goods that infringe its IP rights, it
may notify a customs officer at the port of entry of the infringing goods, requesting the detainment or
clearance of the infringing goods. Once such a request has been made, Customs will notify the rights
holder of the rejection or acceptance of that request within 30 working days of receipt, during
which time Customs will provide assistance to the rights holder. The new rules provide that if a rights
holder alleges that certain goods infringe its IP rights, it must execute a bond with Customs to cover
any charges incurred for the destruction, demurrage and/or detention of the infringing goods if it is
later found that the goods are non-infringing. In addition, Customs has the power to suspend the
customs clearance of the goods if it has prima facie evidence or reason to believe that the imported
goods are infringing IP rights. Sunglasses Company Ray Ban filed the first notice under the new rules
in order to prevent the import of counterfeit sunglasses into India. The significant powers awarded to
Customs allow it to tackle the counterfeiting and piracy of goods at international level.23

As a consequence of the number of measures initiated by the government, there has been more activity
in the enforcement of IP Law in the country. Over the last few years, the number of cases registered
has gone up consistently .The incorporation of such amendments and efforts made by the government
shall go a long way in establishing a fair and equitable procedure with respect to border measures
enforcement for intellectual property rights in India.

23
Anand Pravin , Supra note 10.
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Further Legislation Is Necessary to Bring India’s IP Regime up To

International Standards

The legislation pertaining to the Trademark, copyright and patents have not been able to fully address
the issues of piracy, counterfeiting etc.as the provisions relating to them and others to protect the IP
law domestically are scattered in Indian Penal Code, CrPC, CPC, Customs Act and so on. Thus, it is of
utmost importance that the strong IP law must be ably supported by an equally strong enforcement
mechanism. It is therefore, necessary that any law providing for the protection of IP should also
provide strategic remedies for prevention of it‟s infringement through effective enforcement
mechanism. fair, strong and non discriminatory IPR enforcement can create economic incentives that
encourage innovations and thus to meet up to the international standards several steps need to be
taken:

Awareness among right holders for initiating/pursuing legal (civil/criminal/administrative) actions.

Provide an effective compulsory licensing system and adequate government use provisions.

Policy machinery dealing with such problems should be well equipped for taking immediate
actions. However, unfortunately, the law itself provides for impediment for immediate actions of
search and seizure, one of them being the requirement for obtaining of certificate from registrar of
trademark by right holders before initiating such actions.

Apply strict standards of novelty; inventive step and industrial application or utility, and the section
3 of the Patent Act, 1970 should be amended so that more and more pharmaceutical companies in
India can come.

Judges handling the IP cases ought to be well conversant with intricacies, technicalities and
technological developments in the field and appreciate liberal interpretations of academic standards to
secure interest of the right holders against the infringers.

Provide means to prevent the granting or enforcement of patents comprising biological material or
associated traditional knowledge obtained in contravention of access legislation or the provisions of
the CBD.
27| P a g e

Before the Madrid Protocol is adopted in India, few practical issues have to be looked into. Like
every country will have independent and different standards for prosecution of trademark applications
and indeed some countries may have much stringent procedures for securing and/or maintaining
trademark registrations. Also, the basic principles of trademark law may differ from country to
country as, for instance; an invented mark or a unique mark in India may be deemed as a generic or
even obscene mark in some other country. Therefore, there is a need to introduce a common appraisal
system.

Law designed to address the unauthorized manufacture and distribution of optical discs remains in
draft form and should be enacted in the near term

Steps Taken by the Government to Improve Enforcement of IP

To make IP work for countries and business organizations, the governments of respective countries
must take strong positive action and impose stringent punishment on the infringers.

Some of the measures that could be taken to protect IP would include the provision of a transparent
and enforceable IP rights ownership, irrespective of nationality. The accessibility of national and
global IP systems has to be enhanced by ensuring that the costs of applying, maintaining and
enforcing IP rights are minimal; by simplifying the procedures; and by harmonizing the IP systems
globally and reducing the costs of obtaining IP rights in multi- countries. The government has to
patronize and implement effective IP policies with proper financial management and infrastructure of
IP institutions. It has to take up the task of educating local communities, business enterprises, and
general public on the potential benefits of an efficient IP system. The government should offer
assistance to innovators, producers, creators on the use, protection and commercialization of IP. It has
to take rigorous steps against counterfeiting and piracy and strengthen the legal framework to ensure
effective implementation and enforcement against IP theft.

The Government of India has taken several measures to streamline and strengthen the intellectual
property administration system in the country like:
28| P a g e

The Government has organized many seminars/lectures to create awareness of IPR laws amongst
the stakeholders, enforcement agencies, professional users like the scientific and academic
communities and members of the public. Copies of the Handbook have been circulated free-of-cost to
the state and central government officials, police personnel and to participants in various seminars and
workshops on IPR.

National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics
conducted several training programs on copyright laws for the police and customs officers. Modules
on IPR infringement have been included in their regular training programs.

The Bihar government request made through the department of science and technology to the Union
ministry of micro, small and medium enterprises (MSME) for opening the facilitation centre at Patna
is under active consideration and the centre is likely to be opened by the end of 2011, they organized a
two-day workshop for MSME policy makers and facilitation agencies and entrepreneurs to support
and protect the IPR.24

24
Ravi Dayal, Experts offer support to entrepreneurs on IPR, Times of India, March 3, 2011.
29| P a g e

Madhya Pradesh Government is emphasizing that the IPR should be part of the higher education
curriculum.25

The Department of Education, Ministry of Human Resource Development, Government of India

has initiated several measures in the past for strengthening the enforcement of copyrights that include
constitution of a Copyright Enforcement Advisory Council creation of separate cells in state police
headquarters, encouraging setting up of collective administration societies and organization of
seminars and workshops to create greater awareness of copyright laws among the enforcement
personnel and the general public.

Government of India has created a group of technical experts i.e. known as Mashelkar Committee to
examine the issues in patent law.

The government has already approved the proposal to establish a National Institute of Intellectual
Property Rights Management at Nagpur.

25
IPR must be part of curriculum: MP, Time Of India, Feb 10, 2011.
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Steps taken by FICCI

Workshop on Border Measures on Enforcement of Intellectual Property Rights for customs officers
were held at Kolkata, Chennai and Mumbai.

FICCI–NIAPC has done mass awareness campaigns against Piracy and Counterfeiting through
interactive events, PR and advertising campaigns. They have shot two small ad films on Anti – Piracy,
(30 Secs & 60 Secs) which were telecast on National Television (Doordarshan) and Channels like Star
TV, Fox TV, SONY TV etc, Trying to increase airing frequency and involve more channels.

A working group on Optical Disc Law coordinated by FICCI-NIAPC has developed an action plan
and identified the key areas to be covered and developed for effective enforcement policy to tackle
Optical Disc Piracy. (Recently handed over the draft to the Ministry of Information and Broadcasting
for consideration).

FICCI-NIAPC has been actively associated with and provides policy inputs to all IP related
initiatives being taken by the Government and international organizations including the World
Intellectual Property Organization.
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THE NOVARTIS DECISION OF THE INDIAN SUPREME COURT:

Introduction
On April 1, 2013, in a much-awaited 112-page decision, the Hon‘ble Supreme Court of India rejected
global pharmaceutical major Novartis AG‘s patent application on the Beta Crystalline form of
Imatinib Mesylate (hereinafter referred to as ―BCIM‖), which ostensibly claimed Novartis‘s
blockbuster anti-cancer drug ―Gleevec/Glivec‖. The decision of the Supreme Court was anxiously
awaited for several reasons, but most importantly because the observations and ruling of the Court
would affect the course of pharmaceutical innovation in India, pharma patent-filing strategies, and the
manner of disposal and outcome of pending pharmaceutical product patent applications and appeals
by the Indian Patent Office (IPO) and the Intellectual Property Appellate Board (IPAB) respectively.

Although Section 3(d) of the Patents Act, 1970 (hereinafter referred to as ―the Act‖) has been applied
by the Indian Patent Office on multiple occasions since its introduction through the Patents
(Amendment) Act, 2005, the Novartis case is the first case where the Supreme Court had the occasion
to test the patent-eligibility of a pharmaceutical product on the anvils of the provision. As part of this
analysis, the case also offered the Court a wonderful opportunity to clarify and lay down the law on
several fundamental aspects of the Act such as the interpretation of ―invention‖ and ―inventive
step‖, and their interplay with subject-matter proscriptions under Section 3 of the Act, which have
concrete implications for practitioners and patent examiners.

The broad mandate before the Court was to strike a balance between incentivising innovation and
discouraging attempts to ―evergreen‖ pharmaceutical product patents, which is the manifest
legislative intent behind the inclusion of Section 3(d). However, in the eyes of the international patent
community, the Novartis case was a test of:

(a) The Indian Patent regime‘s approach to the rights of innovator pharma companies in general,
and incremental pharmaceutical innovation in particular; and

(b)The Indian Judiciary‘s ability to comprehend and apply the nuances of patent jurisprudence,
without falling back on the ―public interest‖ argument to whittle down or do away with a rigorous
fact-based techno-legal analysis.
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Facts leading to the Supreme Court decision

At a time when India did not grant pharmaceutical product patents, on July 17, 1998, Novartis AG
filed its ―mailbox‖ Indian patent application (1602/MAS/1998) on BCIM titled ―Crystal
Modification of a N-Phenyl-2- Pyrimidineamine derivative, processes for its manufacture and its use‖
seeking Exclusive Marketing Rights (EMR). The Indian application claimed priority from a Swiss
application dated July 18, 1997. A US application US09/463,097, which too claimed priority from the
Swiss parent application, was filed on July 16, 1998 and granted as US6894051.

Novartis was granted EMR in India on November 10, 2003, and subsequent to the introduction of
pharma product patents in India through the Patents (Amendment) Act, 2005, its application was taken
up for examination for grant of a product patent. However, pursuant to five pre- grant oppositions filed
by Cancer Patients Aid Association, NATCO Pharma Limited, Cipla Limited, Ranbaxy Laboratories
Limited, and Hetero Drugs Limited, Novartis‘s application on BCIM was rejected by the Chennai
branch of the Indian Patent Office January 25, 2006.

The primary grounds for rejection of the application by the Patent Office were lack of novelty and
failure to tide over the prohibition of Section 3(d). With specific reference to the objection under
Section 3(d), following were the observations of the Patent Office:

The Opponent (Cipla) said that the application claims only a polymorphic form of the known
substance, imatinibmesylate. There is no enhancement of known efficacy as required under Section
3(d) of the Patents Act. Moreover the present specification states that all the inhibitory and
pharmacological effects are also found with the free base, or other salts thereof.

Countering the arguments of the Opponent, the Applicant (Novartis) said that the crystal form of
imatinibmesylate is an invention and not a more discovery. They further said that, a discovery
graduating into a patentable invention solely on the basis of efficiency defies logic and, therefore,
Section 3(d) may be unable to stand legal scrutiny. The Applicant submitted that this aspect of Section
3(d) is against the tenets of our patents act and well established principles of jurisprudence and
therefore, the said Section cannot be used against the subject application.

I do not agree with the contention of the Applicant that this application claims a new substance. It is
only a new form of a known substance. As regards efficacy, the specification itself states that where
ever crystals are used the imatinib free base or other salts can be used. Even the affidavit submitted by
33| P a g e

the Applicant states that "the proviso to the Section 3(d) is unique to India and there is no analogous
provision in the law of any other country of the world".

As per the affidavit the technical expert has conducted studies to compare the relative bioavailability
of the free base with that of crystal form of imatinibmesylate and has said that the difference in
bioavailability is only 30 per cent and also the difference in bioavailability may be due to the
difference in their solubility in water. The present patent specification does not bring out any
improvement in the efficacy of the crystal form over the known substances rather it states the base can
be used equally in the treatment of diseases or in the preparation of pharmacological agents wherever
the crystal is used.

Even the affidavit submitted on behalf of the Applicant does not prove any significant enhancement of
known efficacy. It is found that this patent application claims only a new form of a known substance
without having any significant improvement in efficacy. Hence, I conclude that the subject matter of
this application is not patentable under Section 3(d) of the Patents Act, 1970 as amended by the
Patents (Amendment) Act, 2005.‖

Several critical aspects of Novartis‘s approach are borne out from the above extracted observations of
the Patent Office. First, instead of treating imatinibmesylate as the ―known substance‖ for the
purposes of proving novelty and efficacy of its beta crystalline form, Novartis insisted on treating the
imatinib free base as the known substance. This, despite the fact that pharmaceutically acceptable salts
of free bases (including mesylate salts) and their enhanced solubility properties were well-known in
the prior art. Second, clearly the emphasis of Novartis‘s application was never on enhanced
therapeutic efficacy. Instead, improved thermodynamic stability and subsequently, increased
bioavailability were projected as the unique selling propositions of the application. This is clear from
the absence of data in Novartis‘s affidavit to prove enhanced efficacy.

Further, despite the express observations of the Patent Office on the need to establish enhanced
efficacy, there was no attempt on the part of Novartis to submit efficacy data by amending the
application (assuming such amendment is permissible under the Act), even when the issue of efficacy
was raised by the IPAB and the Supreme Court. As shall be seen from the ensuing portions of the
paper, all along Novartis endeavored to either question the legitimacy of Section 3(d) or expand the
scope of the definition of enhanced efficacy to include increased bioavailability within its ambit.

Against the rejection of the Patent Office, Novartis filed seven writ petitions in all before the Madras
High Court. Out of these, two petitions challenged the constitutionality and TRIPS-compliance of
34| P a g e

Section 3(d). Both these petitions were dismissed by the Madras High Court in 2007. These dismissals
were not appealed against by Novartis.

The other five writ petitions challenged the pre-grant decision of the Patent Office. Pursuant to Section
117G of the Act, these five petitions were converted to appeals and transferred in 2007 to the then
newly- constituted IPAB. By an order dated June 26, 2009, the IPAB upheld the rejection of
Novartis‘s application by the Patent Office essentially relying on Section 3(d). In contrast to the Patent
Office, the IPAB held that BCIM was novel and inventive, but rejected it citing Section 3(d)1 . The
IPAB agreed with the Madras High Court‘s interpretation of ―efficacy‖ as the ability of a drug to heal
or treat a condition. The IPAB held that not every advantageous property fell within the definition of
―efficacy‖ unless it led to enhanced efficacy. Specifically, the IPAB observed that it was not
scientifically possible for Novartis to argue that bio-availability was either synonymous with or
automatically led to enhanced efficacy. Instead, according to the IPAB, Novartis had to positively
establish using experimental data that in the context of the application, increased bioavailability
indeed led to enhanced efficacy, which it failed to.

It is against this decision of the IPAB that Novartis preferred Special Leave Petitions (SLPs) in which
the Supreme Court finally pronounced its verdict on April 1, 2013.
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Analysis of the Supreme Court‟s Decision

Interpretation of “Inventive Step”

As stated earlier, the Novartis case presented the Supreme Court with an opportunity to lay down the
law on several fundamental aspects of the Act. For instance, misconceptions abound on the
interpretation of inventive step‖ under Section 2(1)(ja) of the Act. Inventive step under the Act is
defined as follows:

Inventive step‖ means a feature of an invention that involves technical advance as compared to the
existing knowledge or having economic significance or both and that makes the invention not obvious
to a person skilled in the art

The IPAB also erroneously relied upon the ground of public order under Section 3(b) to reject the
application since the price of Glivec was, in its opinion, exorbitant.

The abridged and incorrect interpretation of the definition that is subscribed to by one school of
thought is that inventive step is synonymous with ―a non-obvious technical advance‖. This, however,
has no basis in the legislative intent reflected in the phraseology of the definition. If inventive step
were to mean a ―non-obvious technical advance‖, it renders nugatory the presence of ―or having
economic significance or both. The simpler way of understanding the definition is to expand it as
follows:

1. Inventive step means a feature of an invention that involves technical advance as compared to the
existing knowledge and that (the reference here is to feature, not to "technical advance") makes the
invention non-obvious to a person skilled in the art

2. Inventive step means a feature of an invention having economic significance and that (the reference
here is again to feature, not "technical advance") makes the invention non-obvious to a person skilled
in the art

3. Inventive step means a feature of an invention having technical advance and economic significance
and that (the reference here too is to ―feature‖, not "technical advance") makes the invention non-
obvious to a person skilled in the art.

In other words, inventive step refers to that feature of the invention which satisfies the following twin
criteria:
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1. The feature involve a technical advance or must have economic significance or both; and

2. The feature must be non-obvious to a person skilled in the art.

Therefore, inventive step does not refer to a ―non-obvious technical advance‖, but in fact refers to a
―non-obvious feature‖ which involves either a technical advance or has economic significance or
both. Clearly, the definition distinguishes ―technical advance‖ from the requirement of non-
obviousness. In other words, a technical advance by itself is not non-obvious, since if that were to be
the case a ―non-obvious technical advance‖ would be a pleonasm.

One of the principles of statutory interpretation is that no word or term or phrase used in a provision
must be rendered redundant. Applying this principle to the definition of inventive step, it bears out that
a technical advance simply refers to a feature which is technical in nature, but whose qualitative
contribution is to be further assessed by the requirement of ―that makes the invention not obvious to
a person skilled in the art‖.

The other important corollary is that the presence of technical advance is not the only acceptable
criterion to examine if an invention has an inventive step. Economic significance of a feature which is
non-obvious too could help the product or the process satisfy the ―inventive step‖ requirement.
Importantly, the criterion of economic significance is equally applicable to products and processes.
This line of interpretation has been expressly endorsed by the Supreme Court in Para 90 of the
decision, which is as follows:

90. On a combined reading of causes (j), (ac) and (ja) of section 2(1), in order to qualify as invention‖,
a product must, therefore, satisfy the following tests:

(i) It must be ―new‖;

(ii) It must be ―capable of being made or used in an industry‖

(iii) It must come into being as a result of an invention which has a feature that:

(a) entails technical advance over existing knowledge;Or (b)has an economic significance

And(c) makes the invention not obvious to a person skilled in the art.‖Clearly, according to the
Supreme Court, a feature which has an economic significance, which feature also makes the invention
non- obvious, also qualifies as ―inventive step‖ under the Act.
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Is Section 3(d) TRIPS-compliant?

As stated earlier, Novartis filed writ petitions before the Madras High Court challenging the TRIPS-
compliance and constitutionality of Section 3(d), which were dismissed by the High Court essentially
on grounds that it did not have the requisite jurisdiction to look into TRIPS- compliance. If however
Novartis or any country which is party to TRIPS were to challenge the legitimacy of Section 3(d)
before the WTO Dispute Settlement Panel, India is not without legally sound arguments to support the
inclusion of Section 3(d). In fact, support for Section 3(d) may be drawn from Article 27 of TRIPS
which India is alleged to have violated by introducing Section 3(d). Extracted below is Article 27 of

TRIPS:
Article 27: Patentable Subject Matter

1.Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions,
whether products or processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65,
paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights
enjoyable without discrimination as to the place of invention, the field of technology and whether
products are imported or locally produced.

2.Members may exclude from patentability inventions, the prevention within their territory of the
commercial exploitation of which is necessary to protect public order or morality, including to protect
human, animal or plant life or health or to avoid serious prejudice to the environment, provided that
such exclusion is not made merely because the exploitation is prohibited by their law.

3.Members may also exclude from patentability:

(a)diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b)plants and animals other than micro-organisms, and essentially biological processes for the
production of plants or animals other than non-biological and microbiological processes. However,
Members shall provide for the protection of plant varieties either by patents or by an effective sui
generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed
four years after the date of entry into force of the WTO Agreement.
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Article 27.1 clearly begins with a contingent clause which makes the obligations imposed under Para 1
of Article 27 subject to the flexibilities available under Paras 2 and 3. Para 2 of Article 27 clearly vests
member countries with flexibilities to exclude from patentability those inventions whose commercial
exploitation could adversely affect public order, including public health. In other words, thanks to
Article 27.2, member countries have the right to exclude from the purview of Para 1 those inventions
which negatively impact public health. Consequently, the obligation to treat inventions in different
fields of technology without discrimination is subject to the exercise of flexibilities under Paras 2 and
3 to exclude certain inventions as being ineligible for grant of patents.

Further, Article 27.2 does not prescribe or limit the minutiae or specifics of the criteria which may be
used to exclude such inventions from patentability, thereby giving member countries the freedom to
select criterion they deem fit to preserve public health. Consequently, India is well within its rights to
use an elevated novelty standard under Section 3(d) to exclude subject-matter which have a bearing on
public health/public order. It is also possible to treat Section 3(d) as an extension of or yet another
category of Section 3(b) which addresses the issue of public order and morality.

Although a separate instrument is not necessary to prove this point any further, the Declaration on the
TRIPS Agreement and Public Health dated November 20, 2001, popularly known as the Doha
Declaration, categorically recognizes this right in Para 4 as follows:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures
to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we
affirm that the Agreement can and should be interpreted and implemented in a manner supportive of
WTO members' right to protect public health and, in particular, to promote access to medicines for all.

In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the
TRIPS Agreement, which provide flexibility for this purpose.‖

Therefore, the allegation that Section 3(d) is violative of India‘s TRIPS obligations is baseless. In fact,
anyone who argues to the contrary clearly does so to undermine the sanctity of the Doha Declaration,
and the flexibilities of member countries.
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Conclusion of Novartis Case

The Novartis decision clearly proves that if ably assisted, Indian Courts can handle patent litigation
and address critical issues objectively with restraint. That said, the hype and interest surrounding the
Novartis decision seems to have created this misplaced notion that weeding out frivolous patent
applications is the panacea to all our healthcare challenges. With pharma patent litigation increasingly
taking centre stage, the one thing that we need to be wary of is the temptation to expect the patent
system to solve all our healthcare challenges, including that of affordable access to medicines. This
temptation to put all our eggs in the patent basket becomes a compulsive habit particularly in the
absence of a clear-cut healthcare strategy, since the health establishment of the country would want to
be seen as doing something, and patent busting is probably the most public way to be seen as doing
something given the unpopular perception of patents and innovator drug companies.

Patents are without a doubt relevant to the debate, and patents which add no value must definitely be
discouraged. But the question is, apart from pitting innovator drug companies against generics and
deriving a vicarious pleasure out of this slugfest, have we truly explored all plausible and available
options under and outside the Patents Act, 1970? For instance, if the Government is truly keen on
nipping frivolous patent applications or patents in the bud, it could and ought to have actively
employed the pre-grant and post-grant opposition mechanisms and revocation petitions. After all, the
definition of ―person‖ under the Act includes the government, and the Ministry of Health could
arguably qualify as a ―person interested‖. Therefore, nothing prevents the Government from filing
oppositions to and seeking revocations of frivolous patent applications and patents.

Also, what has prevented the Government from stocking adequate quantities of patented drugs in
hospitals and dispensaries owned by the Government, thereby giving effect to Section 47(4) of the
Act? Section 47 lists the conditions subject to which a patent is granted under the Act. One of these
conditions under Section 47(4) is that in the case of a patent in respect of any medicine or drug, the
medicine or drug may be imported by the Government for distribution in any dispensary or hospital or
other medical institution maintained by or on behalf of the Government. The provision further
empowers the Central Government to notify and permit importation of patented medicines by
hospitals and institutions which render public service. If the Government is truly intent on increasing
affordable access to drugs, these are concrete steps which it can take forthwith without having to
legislate any further.
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Apart from patent-related issues, one of the issues central to the healthcare discourse is elevating the
quality of research undertaken by Indian pharma companies and providing impetus to the growth of
home- grown entities in related areas such as clinical trials. Instead of investing efforts in this
direction, the Government has in fact contributed to the potential decline of Indian clinical trial
industry by implementing feckless provisions such as the new Rule 122DAB of the Drugs and
Cosmetics Rules, 1945, which states, inter alia, that failure of an investigational product to provide the
intended therapeutic effect shall be considered as having caused a clinical trial- related injury or death.
If the very purpose of a clinical trial is to evaluate the drug, what sense does it make to hold the
sponsor of a trial or the Clinical Trial Organization (CTO) responsible for failure of the drug to
provide the intended therapeutic effect? This is again demonstrative of the Government‘s need to
appear to have taken stringent action after being hauled over hot coals by the Supreme Court in
October 2012 in a PIL filed by an NGO, SwasthyaAdhikarManch, for clinical trial-related deaths. But
in the process, thoughtless provisions such as the Rule 122DABcould have the effect of deterring
companies from undertaking clinical trials in India, thereby adversely affecting the fortunes of
CTOs/CROs in India, which already face stiff competition from China.

Unfortunately, instead of holistically addressing issues like these, the healthcare discourse seems to
revolve entirely around the system of patents. It would help to formulate our healthcare goals in
specific terms, and explore options under multiple legislations instead of pinning all our hopes on the
patent system. This calls for a comprehensive and strategic approach to healthcare, which though is
the need of the hour, hardly seems to engage the attention of the powers that be.
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Critical Analysis

India has a well-established judicial system to work out an effective intellectual property (IP)
ecosystem. Based on feedback from stakeholders, the government has taken several initiatives to
create awareness and inculcate a culture of innovation in India. During the year, the IP offices have
been radically transformed through numerous initiatives, which have contributed tremendously to the
understanding of IP and easing the patenting system to make it more user-friendly. Some of the
developments that happened in 2017 are discussed herein.

One of the significant achievements has been to conduct various awareness programmes to make IP-
related issues understandable, and imparting knowledge to various sectors including universities,
industries and the general public. The collaborations among the Indian Patent Office and industry
associations like the Federation of Indian Chambers of Commerce & Industry (FICCI), the
Confederation of Indian Industry (CII), the Associated Chambers of Commerce & Industry of India
(ASSOCHAM) and PHD Chamber of Commerce & Industry (PHDCCI) to conduct awareness
programmes and raising awareness levels of the public have been noteworthy in augmenting the IP
ecosystem. In this regard, the Modernization and Strengthening of Intellectual Property Office
(MSIPO) scheme has been floated by the Department of Industrial Policy and Promotion (DIPP).

To further enable the participation and utilization of the IP ecosystem, especially by small players like
startups, the DIPP redefined the criteria for companies to qualify as a "startup", effective from 1
December 2017. The new definition even clarified the inclusion of foreign startups, and also increased
the tenure of startups from five to seven years from the date of incorporation. The DIPP also
considered the difficulties associated with biotech startups and increased the tenure to 10 years from
the date of incorporation to avail startup facilities. Startups can avail various benefits under the patent
regime, such as fast-track examination and a considerably reduced fee.

To develop the culture of innovation, initiatives have been taken at the international levels as well by
the government of India. The DIPP and World Intellectual Property Organization (WIPO) have signed
an agreement to establish Technology and Innovation Support Centers (TISCs) in India. The TISC
programme provides innovators in developing countries access to locally based, high-quality
technology information and related services, helping them to exploit their innovative potential and
create, protect, and manage their IP Rights.
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TISCs provide a number of services including access to online patent and non-patent resources and IP-
related publications, assistance in searching and retrieving technology information, training in the
database search, on-demand search, monitoring technology and competitors, basic information on
industry laws, property laws, management and strategy, technology commercialization and marketing.

This is seen to be a positive step to enable Indian startups to become better informed about IPR and
taking proactive steps to protect and monetize them. Under this programme, the first TISC was set up
in Chandigarh, Punjab with the Punjab State Council of Science and Technology, in July 2017. At
present, there are two more TISCs – the Centre for Intellectual Property Rights, Anna University at
Chennai in Tamil Nadu, and the Intellectual Property Facilitation Centre, National Research
Development Corporation at Vishakhapatnam in Andhra Pradesh.

The Indian IP Office has also been taking commendable initiatives in partnering with IP stakeholders
to augment the IP experience in India. Under the initiative of partnering with IP stakeholders, the IP
office has been conducting interactive meetings with stakeholders. At the stakeholders' meeting with
Startups Intellectual Property Protection (SIPP), held on 7 December 2017, issues pertaining to the
procedures were discussed and for smooth functioning of the system various significant changes were
initiated and accepted by the Controller General of Patents, Designs and Trademarks (CGPDTM)
including: automation for the intimation of the publication of patent applications via email and SMS
alert; updating email IDs on a routine basis; SMS alert services initiated for critical due dates such as
request for examination, reply to First Examination Reports (FERs), and renewal filings and form 27.

The Patent Office also took initiatives to clear the backlog and stuck cases by undertaking to cross-
check very old patent cases where the FER had not been issued. Old cases were expected to be taken
up for disposal on priority. Timelines were also to be set for issuance of the decision after the hearing
is conducted and written submissions are filed. The year also witnessed efficiencies in processing
including uniformity and consistency of patent applications, and substantial improvements in the
procedure for filing and prosecution. It is pertinent to mention that some steps, such as the weekly
release of FER data, issuance of bilingual FERs, and issuance of online letters patent document (LPD),
have already been taken care of by the CGPDTM.
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The Patent Office has also been developing examination guidelines in different technology areas, and,
based on the stakeholder's feedback, revised the guidelines for computer-related inventions in June
2017. The revised guidelines were significant for patent applicants since the revision involved the
removal of the requirement that software patents can be claimed only in conjunction with novel
hardware.

There were also some notable judicial developments in 2017, one of which was related to the "Bolar
provision". In a significant development, in March 2017 the Delhi High Court in the matter of writ
petition Bayer Corporation v Union of India & Anr and a lawsuit filed in Bayer Intellectual Property
GMBH & Anr v Alembic Pharmaceuticals Ltd conjointly, considered the legal question of
interpretation of section 107A(a) of the Patents Act. The court held, inter alia, that the language of
section 107A of the act permits exports from India of a patented invention solely for uses reasonably
related to the development and submission of information required under any law for the time being in
force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale
or import of any product, and that no suit prohibiting export per se of a patented invention can lie. The
Court also held that the grant of a compulsory licence would not come in the way of the licensee
exercising its rights under section 107A(a) as a non-patentee. The decision has been assailed by Bayer
before the Division Bench, and the matter is still under consideration.

Recent developments in the field of patent law have been diversified in nature in India. The Indian
patent system is continually evolving to provide seamless services to its users by utilizing and
implementing digital technology. Significant efforts like reduced examination timelines and other
improvement steps such as an efficient filing system for applicants show the patent system is
improving in relation to both prosecution and enforcement. As the patent office is also trying to
simplify and clarify various procedures, this is an exciting time to witness the many more significant
and positive developments in the near future for the Indian IP system.
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Conclusion

If IPR laws in India are carefully formulated and implemented, India could be an ideal center for
activities of research and development and clinical studies, with patent protection. Both domestic and
global contract research organisations are viewing India as the hotbed for clinical research.
Proficiency in English and skilled manpower, and availability of huge patient volunteers is going to
set the pace for unprecedented opportunities for domestic manufacturers. India has a vast domestic
market as well as a vast reservoir of technical, managerial and entrepreneurial skills. It is in our long-
term interest to have an intellectual properly protection system that recognizes both, the need for
encouraging and rewarding innovation, as well as our key public interest concerns. It must be
remembered that as more and more countries adopt international norms and standards for the
protection of intellectual property rights, the export of products from India to those countries in
violation of intellectual property rights will not be permissible. The reason is that the world today 318
has become a “global village” particularly as a result of the advances in science and technology-
through informatics, telecommunications, mass transportation, etc. Globalisation in human activities is
a natural consequence. We should be a part of this globalisation and not adopt an isolationist stance. It
will be advisable for us to adopt internationally accepted norms and standards for the protection of
intellectual property rights while including provisions that are necessary to protect biodiversity. But in
participating in a global partnership as comprehensive as covered by the Dunkel Draft, we have to
examine the short, intermediate and long term aspects from the viewpoint of different sectors and the
advantages and disadvantages in these different time horizons. No one can deny that it is good to be
part of the international body, but that has to be for the benefit of the common man and not for the
profit-hungry commercial corporations or under pressure from developed countries. No doubt one
cannot have everything in one’s favour, but overall there must be a clear indication that the losses will
not be such as to constitute colonization once again. Globalization must involve a deep consideration
of issues relating to social justice and equity. Each country will, no doubt, have to give up some
elements of its national sovereignty to function as part of the world community. But the developing
world should not be the one that is expected to pay a major price. Science and technology are a shared
heritage of all humankind. Our past in this area is a result of equal participation of all, and our future
lies in joint endeavour of diverse people throughout 319 the globe. In the present day situation, the
fact remains that creation, mastery and utilization of science and technology are basically what
distinguish the Third World from the developed nations. Modem technology breaks all barriers to
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development and offers the best and perhaps the most affordable hope for transforming
underdeveloped nations into vibrant economical developed countries. It is also not surprising to find
national development policies revolve around measures for strengthening technical knowledge based
indigenously or acquiring it from abroad. The recent global trend in IPRs has made it necessary to
bring the disparities within the IPR law to the minimum to develop an atmosphere of understanding
and friendliness among the nations.
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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my mentor Dr. Pratyusha
Das ma’am for her exemplary guidance, monitoring and constant encouragement throughout the
course of this thesis. The blessing, help and guidance given by him time to time shall carry me a long
way in the journey of life on which I am about to embark.
I also take this opportunity to express a deep sense of gratitude to our all faculty members of Amity
Law School for their cordial support, valuable information and guidance, which helped me in
completing this task through various stages.
I am obliged to Director for the valuable information provided by him. I am grateful for their
cooperation during the period of my assignment.
Lastly, I thank almighty, my parents, brother, sisters and friends for their constant encouragement
without which this assignment would not be possible.
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The Indian Journal of

Intellectual Property Law
The Indian Journal of
Intellectual Property Law
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