3 min readNew DelhiDec 30, 2004 12:00 AM IST
First published on: Dec 30, 2004 at 01:29 AM IST
As the New Year dawns, a serious but somewhat misleading exercise will get underway.
First, the government will open a ‘‘mail box’’ that was set up 10 years ago in anticipation of a law extending ‘‘product patent’’ protection to the critical sectors of drugs, food and chemicals. More than 12,000 patent applications many of them by MNCs have been dropped in the mail box in the intervening period and the anticipated law came last Sunday in the form of an ordinance.
After the mail box is opened, the government will, as required by the Patents Act 1970, publish the applications that are being considered. On the face of it, this is to inform all those who are likely to be affected by the grant of product patents.
But if there is anything objectionable in any of the patent claims, there is little anybody can do about it, thanks to an amendment made by the new ordinance.
Under the 1970 Act, anybody could within four months of the publication of the application ‘‘give notice to the Controller of opposition to the grant of the patent’’ on any of the specified grounds. And the Controller was then required to give the challenger ‘‘an opportunity to be heard before deciding the case.’’
But the ordinance promulgated on December 26 does not allow any objector to be heard before the grant of patent. It stipulates that the objector ‘‘shall not become a party to any proceedings…’’ All that is permissible under the ordinance is that he ‘‘may, in writing, represent by way of opposition to the Controller against the grant of patent’’ on the specified grounds.
The ordinance has, in effect, reduced the provision for pre-grant opposition in the 1970 Act to the ‘‘pre-grant representation’’ envisaged by the now lapsed 2003 Bill of the NDA Government on the same subject. Commerce and Industries Minister Kamal Nath has, however, claimed that the ordinance has ‘‘improved’’ on the NDA Bill by providing ‘‘a definite pre-grant opposition procedure.’’ Kamal Nath was trying to signal to the Left parties that one of their most important concerns had been accommodated.
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Misleading exercise?
The ordinance stipulates that the objector ‘‘shall not become a party to any proceedings…’’
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Unwilling to pass on too much power too easily to potential monopolists, the Left parties wanted pre-grant opposition to be retained.
The irony is that even the NDA, which had initially felt that such challenges might slow down the process of granting process patents, had come around to the same view. This happened after a controvery earlier this year over an exorbitant price quoted by a pharma MNC, Novartis, for a life-saving anti-cancer drug after it had been granted exclusive marketing rights in India. That experience may have sobered the NDA, but the new government is clearly plumbing for speed in the grant of patents.
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