Indo-U.S Relations In Light Of Patent Laws - An Overview

By Shivali Bansal

India and U.S are the two great democracies in the world presently, but the relation between them subsists not only from post independence era in Indian history ,but from the time when India have not even gained independence. The relations among them have been changed and developed overtime due to various factors , which resulted in cooperation as well as conflict sometime. Today also the relations are influenced by several inter-related factors one of them being patent policy. So in the present article there is an attempt to trace Indo-U.S relation under the effect of patent laws and policies first as a deterioration and then as strengthening relations.

The development of patent laws start from 1856 and have modified various times due to changed circumstances, growth and development. .Soon after the independence , the suggestion of Patent Inquiry Committee and Ayyangar Committee were incorporated in Indian Patent Act 1970 with its objective to encourage innovation by protecting proprietary research and development.

Basically , in 1957, Govt. of India appointed Justice N. Rajagopala Ayyangar to examine and review the Patent law in India who submitted his report September 1959 recommending the retention of Patent System despite shortcomings. The Patent Bill, 1965 based mainly on his recommendations incorporating a few changes, in particular relating to Patents for food, drug, medicines, was introduced in the lower house of Parliament on 21st September, 1965. The bill was passed by the Parliament and the Patents Act 1970 came into force on 20th April 1972 along with Patent Rules 1972. This law was suited changed political situation and economic needs for providing impetus technological development by promoting inventive activities in the country.

But still, this was unable to meet the Indian Requirement of encouraging access to foreign technologies as it involved high costs. In order to avoid this shortcoming , patents were issued for methods of producing products i.e the process but not for the product themselves. So the underlying principle being ,that if the same product is produced in a different way then it does not amount to infringement of Patent laws. But tis approach was entirely different from one which was followed in developed countries like U.S.

There were few elementary difference between India and U.S. with respect to patents which invited the conflict between the two. Indian Government did not accept the idea of “product patent regime”, also India’s patent term was far shorter then 20 yrs as mandated

by World Trade Organisation. The term of Indian Patent for chemicals, food , medicines was seven yrs from the date of filling the application or 5 yrs from the date of sealing. And in case of other products , the term was 14 yrs from date of application. The Patent Act also made provisions for the patented inventions by the Government to ensure that there is no scarcity of patented products and there price does not go up i.e, to curb inflation Also patenting was not provided for atomic energy and living organisms. Thus it was in conflict American Law because it provided for wider patenting laws.

But the situation began to change in the decade of 1980s which essentially witnessed the enhancement of cooperation amongst the two nations with respect to science and technology. A significant step was done towards the same by Science And Technology Initiative in 1982 and its renewal in 1985 for three more years. There were successful ventures in the fields of health ,agriculture, biomass, solid-state sciences ,electronics, computers precision instrumentation and software development. This cooperation was threatened by the U.S. insistence for the change in Indian Patent Laws as they wanted India to adopt product patented policy for all products and increase their term , India primarily rejected the same because it can perpetuate monopolies and can restrict new research findings. In 1989 , the U.S named India in the “priority – watch list” for violation of American Intellectual Property Rights.

At the Uruguay talks , when India accepted TRIPS , it was emphasized by India for a more favorable treatment for developing nations in areas of patents and trademark . It was proposed that they should be given freedom to attempt their domestic legislation to their economic development and need of their people.

Uruguay round of GATT negotiations paved the way for WTO. Therefore India was put under the contractual obligation to amend its patents act in compliance with the provisions of TRIPS. India had to meet the first set of requirements on 1- 1-1995. This was to give a pipeline protection till the country starts giving product patent. It came to force on 26th March 1999 retrospective from 1-1-1995. It lays down the provisions for filing of application for product patent in the field of drugs or medicines with effect from 01.01.1995 and grant of Exclusive Marketing Rights on those products.

There were several other changes during 1990s also as it was in the national interest to associate itself with greater economic participation at an International level. The government was supported to bring out such changes by industrial bodies like The Confederation of Indian Industry, Federation of Indian Chambers Of Commerce and

Industry, Associated Chambers of Commerce and Council of Scientific Research and Development.

India amended its Patents Act again in 2002 to meet with the second set of obligations (Term of Patent etc.), which had to be effected from 1-1-2000. This amendment, which provides for 20 years term for the patent, Reversal of burden of proof etc. came into force on 20th May, 2003. Also various Acts were enacted they were- Trademarks Act, Copyright Act and Design Registration Act.

Finally the main hurdle was removed from the path of India and U.S. with the ratification of the Patent (Amendment) Act,2005 by Indian Parliament in April 2005. This Third Amendment of the Patents Act 1970, by way of the Patents (Amendment) Ordinance 2004 came into force on 1st January, 2005 incorporating the provisions for granting

product patent in all fields of Technology including chemicals, food, drugs & agrochemicals, biotechnology and this Ordinance is replaced by the Patents (Amendment) Act 2005 which is in force now having effect from 1-1-2005 .

The same has been acknowledged by he President George Bush during his visit to India in March 2006 and India was seen as a lucrative market and investment center.

President George W. Bush and Prime Minister Manmohan Singh expressed satisfaction with the great progress of the United States and India having made in advancing strategic partnership to meet the global challenges of the 21st century. Both the countries are linked by a deep commitment to freedom and democracy; a celebration of national diversity, human creativity and innovation; a quest to expand prosperity and economic opportunity worldwide; and a desire to increase mutual security against the common threats posed by intolerance, terrorism, and the spread of weapons of mass destruction. The successful transformation of the U.S.-India relationship will have a decisive and positive influence on the future international system as it evolves in this new century.

Reviewing the progress made in deepening the global partnership between the United States and India since their Joint Statement of July 18, 2005, the President and the Prime Minister reaffirm their commitment to expand even further the growing ties between their two countries. Consistent with this objective, the two leaders wish to highlight efforts the United States and India are making together in various areas. Thus with this the era of cooperation began between the two in field of space ,health and defense.

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