IASbhai Daily Editorial Hunt | 4th Jan

“Success is walking from failure to failure with no loss of enthusiasm.” —Winston Churchill

Dear Aspirants
IASbhai Editorial Hunt is an initiative to dilute major Editorials of leading Newspapers in India which are most relevant to UPSC preparation –‘THE HINDU, LIVEMINT , INDIAN EXPRESS’ and help millions of readers who find difficulty in answer writing and making notes everyday. Here we choose two editorials on daily basis and analyse them with respect to UPSC MAINS 2020-21.

EDITORIAL HUNT #297 :“Patent Amendment Rules 2020 Analysis | UPSC

Patent Amendment Rules 2020 Analysis | UPSC

Pankhuri Agarwal
Patent Amendment Rules 2020 Analysis | UPSC

Pankhuri Agarwal is an IP law researcher and a Managing Editor at SpicyIP, an IP law blog.

      HEADLINES:

An anti-disclosure amendment that hits public health

      CENTRAL THEME:

The dilution of patent working disclosure rules hampers the effectiveness of India’s compulsory licensing regime

SYLLABUS COVERED: GS 2 : 3 : Intellectual Property Rights

      MAINS QUESTION:

The deletion of disclosure of information from Patent amendment rules 2020 will not strengthen licensing and invention regime in the country . Examine-(GS 2/3)

      LEARNING: 

  • What is the new rule ?
  • Disclosure of information
  • Missing elements
  • Impact on public interests

      INTRODUCTION: 

  • NEW RULES : New Delhi has recently published the Patent (Amendment) Rules, 2020 , amending the format of a statement that patentees and licensees.
  • DETAILS AND DISCLOSURE : These rules mandate annual submission to the Patent Office disclosing the extent to which they have commercially worked or made the patented inventions available to the public in the country.
  • IMPACT ON LICENSING REGIME : The amendment has significantly watered down the disclosure format, and this could hamper the effectiveness of India’s compulsory licensing regime which depends on full disclosure of patent working information.

This in turn could hinder access to vital inventions including life-saving medicines, thereby impacting public health.

      BODY: 

DISCLOSURE OF INFORMATION

  • DUTIES OF PATENTEE : In exchange of a 20-year patent monopoly granted to an inventor, India’s patent law imposes a duty on the patentee to commercially work the invention in India to ensure that its benefits reach the public.
  • BULK PRODUCTION : In fact, the purpose of granting patents itself is to not only encourage innovation but also ensure that the inventions are worked in India and are made available to the public in sufficient quantity at reasonable prices.

A failure of this duty could trigger compulsory licensing or even subsequent revocation of the patent under the Patents Act, 1970

  • COURTS JURISDICTION : Further, courts have refused an interim injunction in cases alleging infringement of a patent which has not been worked in India.
  • PATENT MONOPOLIES AND CHECKS : The information on the extent of the working of the invention in India is critical for the effectiveness of these public interest measures provided by law to check abuse of patent monopoly .
  • SECTION 146(2) A UNIQUE PROVISION : It is not found in patent laws of most other countries requires every patentee and licensee to submit to the Patent Office which they have worked the invention in India.
  • CRITICISM : Unfortunately, patentees and licensees as well as the Patent Office have blatantly disregarded the above statutory requirement.
  • INTERNATIONAL REACTIONS : Also, there has been significant pressure from multinational corporations and the United States government to do away with this requirement.

DILUTION OF DISCLOSURE

  • AMENDMENTS : The centre acknowledged that the Form 27 format was problematic and provided an undertaking to the court to effect appropriate amendments.

The court accordingly disposed of the PIL in 2018 , directing the government to complete the amendment process within the timelines mentioned in the undertaking

  • DELAY IN AMENDMENTS : However, in non-compliance of the court’s order, the government published the amended form recently after a delay of almost two years.
  • NEW REGULATIONS : More importantly, instead of strengthening the form, the amendment has significantly weakened it further, thereby defeating the entire purpose of the amendment exercise.
  • DAMAGING THE CORE ESSENCE : Instead of calling for more elaborate details of the information, the amended form has removed the requirement of submitting a lot of such important information altogether.

NEW MANDATE

  • The form now requires the patentees and licensees to provide only for the following information: whether the patent has been worked or not.
  • If the invention has been worked, the revenue or value accrued in India from manufacturing and importing the invention into India; and if it has not been worked, reasons for the same and the steps being taken towards working.
  • They are no longer required to provide any information in respect of the quantum of the invention manufactured/imported into India.
  • The licenses and sub-licenses granted during the year and the meeting of public requirement at a reasonable price.

The most basic data required for this assessment is the quantum or the total units of the invention manufactured/imported in India

  • The deletion of the requirement of its disclosure is thus shocking and defeats the very purpose of this Form.

MISSING ELEMENTS

  • REMOVAL OF REQUIREMENT : The removal of the requirement of submitting any licensing information.
  • EXISTENCE OF LICENSE : This includes the disclosure of even the existence of licenses.

This means that the patentees/licensees can just self-certify that they’ve worked the patent without having to support the claim with the data on how they’ve done so 

  • CRITICAL GAPS : Further, the rules omit disclosure of details such as the price of the invention, its estimated demand, the extent to which the demand has been met, details of any special schemes or steps undertaken etc.,
  • IMPACT : The above gaps makes it extremely difficult to ascertain whether the invention has been made available to the public in sufficient quantity and at an affordable price.

      IASbhai Windup: 

IMPACT ON PUBLIC INTEREST

  • DEFEATING THE PURPOSE : The state has significantly weakened the critical duty imposed by the law on patentees/licensees to disclose patent working information, so much so that it has defeated the very purpose of it.
  • PATENT ABUSE : The lack of this information could prevent invocation of compulsory licensing and other public interest measures in cases of patent abuse and make certain inventions inaccessible to the public.

Such lack of accessibility in case of patented medicines could in turn have adverse consequences for public health of the country

  • RESTORATION OF PATENT RULES : New Delhi must reconsider its amendments to the form taking into account the PIL recommendations and re-amend it to restore as well as strengthen its spirit.
       SOURCES:   THE HINDU EDITORIAL HUNT | Patent Amendment Rules 2020 Analysis | UPSC

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