The patent
law of India is incorporate as the Indian Patents Act,
1970. As on date, we do not provide any utility
models protection in India. A utility model protection
provides a protection akin to patent but the duration of such
protection is lesser as compared to a regular patent.
Similarly, the prerequisites for acquiring a utility
model are less stringent as compared to patents. In utility models
although the requirement of novelty must be duly met yet the burden
to prove inventive step and non-obviousness can be easily
discharged.
This practically means that the protection for
utility models is generally sought for innovations of incremental
character which may not meet the patentability criteria. This also
means that cosmetic improvements of already existing and publically
known inventions would not be protected by granting a patent.
When it comes to pharmaceuticals there are many more
complexities involved. From Doha Declaration to compulsory licenses,
pharmaceutical patents are subject to many tests. The pharmaceutical
giant Bayer AG's is also facing threes challenges in India.
The Intellectual Property Appellate Board has
already rejected Bayer AG's plea to stop Natco Pharma from producing
a cheaper generic version of its patented cancer drug Glivec. The
matter finally reached the Supreme Court of India and it is going to
pronounce its judgment on 1st April, 2013.
The concerned patent case before Supreme Court would
decide the fate of patent protection of the Glivec drug in India. It
would also clarify what drug is patentable in India and many more
definitional and other issues.
The patent office of India has refused patent
protection for Glivec on the grounds that it is not a new medicine
but an amended version of a known compound - a decision consistent
with domestic patent law which sets tight restrictions on multiple
patents for a drug.
India last year also allowed local drug maker Natco
Pharma to sell cheaper copies of Bayer AG's cancer drug Nexavar
through the mechanism of compulsory licensing. Also last year, India
revoked patents granted to Pfizer Inc's cancer drug Sutent, Roche
Holding AG's hepatitis C drug Pegasys, and Merck & Co's asthma
treatment aerosol suspension formulation. They were all revoked on
grounds that included lack of innovation.
We at Perry4Law
believe that the decision of Supreme Court should definitely consider
the aspects of Doha Declaration, TRIPS Agreement, Public Health and
Public Interest, Compulsory License Requirements, etc. We would
cover the decision of Supreme Court once it is given.
