navigating the patent maze

The latest amendment to the 1970 Patent Act of India (effective 1 January 2005) brings the law into compliance with TRIPS.   One of the major changes was to allow patents for methods and pharmaceutical patents; previously only certain products were patentable.  In addition embedded software that has technical applications can now be patented.  Procedural changes implemented include those at both pre-grant and post-grant opposition and reducing the time limit to request exam

to 3 years.

The new law affects both the pharmaceutical and agriculture industries.   India opted to provide protection for plant varieties by a sui generis system (see Koo, Nottenburg, Pardey, Science 306:1295, 2005 or write to me and I will send you a PDF), but the current patent law does not exclude plants or seeds produced by novel means, e.g., transgenic plants / seeds.  The previous amendment to the Patent Act excluded plants per se but allowed patents for biotechnology methods for developing novel plants.  An interesting discussion of some of the limitations of the new law and areas where the new law is silent can be found in an article from The Financial Express, 03 January 2005.

In the arena of pharmaceutical technologies, allowing protection for products is a major departure from previous law, and it will impact the industry in India, which is a substantial industry.  Just how it will impact the industry is a source of debate.   In the U.S., the pharmaceutical industry emphatically believes that drug development would not happen without patents.  This viewpoint is not universally shared, however.  (For a pessimistic view, see "Death knell for low cost medicines" in indiatogether.org.)  Some of this alternative scenario emanates from a mis-understanding of the patent system:  for example, the article "Death knell…" contends that locally manufactured medicines, which are cheaper than brand names, will have to be withdrawn, ignoring the fact that the brand name medicines are not patented in India. 

Just as with any change in law, the ramifications will not be clear until the patent office and courts have had some time to consider how the law should be implemented and interpreted.