Report No. 167
1.2. Brief History.-
The Patents Act, 1970 was enacted by Parliament to amend and consolidate the law concerning patents. It was based upon the comprehensive report prepared by Shri Justice N. Rajagopala Ayyangar (a former Judge of the Supreme Court) as modified by the Report of the Joint Committee of Parliament dated November 1, 1966.
1.2.1. India has signed the agreement for the establishment of World Trade Organisation (WTO) including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The WTO agreement has come into force on 1st January, 1995. With a view to meeting India's obligations under the TRIPS Agreement, it has become necessary to amend the Patents Act, 1970. An extract from the Statement of Objects and Reasons appended to The Patents (Amendment) Bill, 1998 (Bill No. XVIV of 1998 as introduced in the Rajya Sabha on 10-12-1998) gives chronology of events happened after 1-1-1995, as follows:-
"2. The TRIPS Agreement, inter alia, prescribes the (minimum standards to be adopted by the member countries in respect of 8 years of intellectual property. Though, India has a transition period of 5 years (w.e.f. 1-1-1995) under Article 65 to apply the provisions of the Agreement and an additional period of 5 years for extending product patent protection to areas of technology not protected so far, certain obligations were required to be fulfilled w.e.f. 1-1-1995 as explained in the succeeding paragraphs.
3. Notwithstanding the transition periods as mentioned above, in terms of Articles 70.8 and 70.9 of the TRIPS Agreement, member countries which do not provide for product patents in the areas of pharmaceuticals and agricultural chemicals, were required to provide with effect from the coming into force of the WTO Agreement, i.e., from 1st January, 1995, a means to receive product patent applications for pharmaceuticals and agricultural chemicals, and on fulfilment of certain conditions, grant exclusive marketing rights for a period of five years or until the patent is granted or rejected whichever is shorter.
4. As the Patents Act, 1970 does not provide for grant of product patents, inter alia, in the fields of agricultural chemicals and pharmaceuticals and also for grant of Exclusive Marketing Rights (EMRs), the provisions of Articles 70.8 and 70.9 were applicable to India.
5. These obligations were initially fulfilled by issuing an Ordinance on 31st December, 1994, namely, the Patents (Amendment) Ordinance, 1994.
6. Subsequently, the Patents (Amendment) Bill, 1995 was introduced in the Lok Sabha in March 1995. The Bill was parsed by the Lok Sabha and then introduced in the Rajya Sabha where it was referred to a Select Committee of the House. As the Select Committee did not submit its report before the dissolution of the 10th Lok Sabha, the Bill lapsed.
7. While taking steps to amend the Patents Act, 1970 to fulfil our obligations under the Agreement, measures have been incorporated in the amendments to ensure that Government's ability to intervene in the public interest is preserved. Further restriction on inventions made in India are also proposed to be removed. Certain safeguards are proposed to be provided in the form of public non-commercial use, price fixation and compulsory licensing. The Bill also contain some measures in the interest of National Security. It is also proposed to provide validation to applications filed after 26 March, 1995."
1.3. Since the Patents (Amendment) Bill, 1998 could not be passed by House of the People in Parliament, the President of India promulgated 'The Patents (Amendment) Ordinance, 1999' to amend the Patents Act, 1970, for giving effect to the provisions of the World Trade Organisation (WTO)/TRIPS Agreement.