World-Class or modern patents are new terminologies recently adopted by US MNCs and US trade representatives to designate a patent system, which provides stronger patent protection to rightholders, than even the TRIPS agreement. People often use these terms under the mistaken belief that these refer to a modern and progressive patent system, which will promote research and technological development. Till 1992, the developed countries were happy with the protection available under the Paris Convention. However, the Dunkel Draft Text introduced the TRIPS patent regime providing for much stronger patent protection than the Paris Convention. Having achieved a higher level of protection under TRIPS, they are now aiming to make further inroads by making the system full proof in favour of MNC patent holders, by inducting or forcing the developing countries to accept the "World Class" patent system under the threat of Special 301. There is no single document specifying the requirements of World-Class patents. Theirexpectations can be discussed in the following paras.First, the scope and coverage of patentable subjects includes :A) all fields of technology with no limitations; B) Both product & process patents to be covered; C) even discoveries (as distinguished from inventions) are also patentable; D) Discoveries being patentable, the field will be extended to all natural products and living beings, including micro-organisms occurring in nature. E) New use of known-substances and known-processes; combination products ; methods of testing and analysis; F)inventions of bio-tech, genetic engineering inventions, clones etc. None of these (except micro-organism and plant varieties) are required to be covered even by the TRIPS agreement. The Indian Patent Act 1970, excludes item c and f totally and covers only limited fields in a and b.
Second, the criteria of patentability is lax. The standards of each of the criteria of patentability, prescribed by TRIPS, namely: "new", involving an inventive step, capable ofindustrial application, are considerably relaxed in the World Class patents, to allow even common place items like turmeric powder, new products, combination drugs, new uses of known-drugs etc. to be treated as satisfying the patentability requirement.
Third, the procedures are designed to avoid detailed scrutiny and public opposition. The pre-grant departmental scrutiny of the patent specifications is required to be brief and expeditious, avoiding prior publication. Both TRIPS and the Patent Act 1970, permit departmental scrutiny, prior scrutiny and opposition by interested parties before grant.
Fourth, in the case of chemical patents, broad claims covering millions of compounds on basis of research and disclosure of only a few compounds, is to be allowed on hypothetical consideration, and application of doctrine of equivalents. In the case of micro-organisms, claiming of entire species may have to be permitted. TRIPS and Patent Act 1970 dos not require patent protection to be extended to suchhypothetical claims.
Fifth, importation has to be accepted as working of the patent. Under US Law, the patentee need not produce, import or actually use the patent in the country. Yet he gets a right to prevent others from using, producing or researching.The TRIPS Agreement (via Paris Convention) accepts importation as working for the purposes of resisting revocation of patent on ground of non-working, but compulsory licenses can be issued if working is only by importation. The Patent Act 1970 insists on working of the patent in the country.
Sixth, in case of drugs and medicines, where approvals of regulatory authority as required for marketing, the 20 year patent term will be counted from the day, market approval is given for the commodity or drug by the F.D.A. Thus the period can be extended upto a further five years. But, TRIPS and the Patent Act 1970 do not require any such extension to be granted.
Seventh, while the patent is in force, whether during the original term or extended period, use of theinvention for experiments, research, or even clinical trials for generating data for market approval and introduction of the drug after expiry of the patent is prohibited. The result is that after expiry of the patent, other manufacturers cannot introduce the drug, and the consumer will be denied an alternate source for a further period of about 2 years. Thus, in effect the 20 year term gets extended to about 24 to 27 years. Here again, neither TRIPS nor the Patent Act, 1970 prescribe this.
Moreover, the licensing provisions are either totally excluded (as in US) or rendered almost illusory by rigid procedures . Thus, an alternate source of supply is denied during the entire term of patent. TRIPS through Article 5 of Paris Convention, read with Article 8, allows licensing. Next, state use of patents is not to be permitted, except in the case of emergencies and that too limiting in point of time and scope. For state use also, economic value of usage of patents is to be allowed as compensation. Though underUS Law - 28 U.S.C. 1498, the Federal government has reserved all the powers, they insist on the other countries not reserving any such powers. TRIPS Agreement, properly applied, permits such sovereign power reservation. Patent Act, 1970 makes specific provisions. Thus, the acceptance of "World-Class" patents would simply lead to an uncontrolled monopoly of the worst type, with the state being reduced, not only to a helpless and mute spectator, but also an unwilling accomplice, abettor and supporter of exploitation. It would arm the MNC right holder with weapons, against which there can be no protection. In fact, the state itself would be a hapless victim. World-Class patents is thus an invitation to disaster.
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.
