Product/Process Patents :

Section 5 of the Patent Act 1970 had provided for grant of only process patents in certain categories of inventions. It may be pointed out here that under the Patent Act, 1970, in all other areas product and process patents could be issued and have been issued. The Paris Convention has left this issue to be dealt with in the States legislation in a manner of its own choice.

The TRIPs Agreement under Article 27.1 stipulates that patents shall be available for any inventions, whether products or processes in all fields of technology except for the exclusion stipulated under Article 27.2 and 27.3.

Pursuant to the TRIPs agreement, the Patent Act, 1970 was amended in 2002. Section 5 of the Patents Act, 1970 (as it stood after the 2002 amendments) provided that, in the case of inventions being claimed relating to food, medicine, drugs or chemical substances, only patents relating to the methods or processes of manufacture of such substances could be obtained.

An explanation appended to the Section 5 provided that “chemical process” includes biochemical, biotechnological and microbiological processes. Subsequently, Section 5 of the Patents Act, 1970 was deleted by the Patents (Amendment) Act, 2005 that came into force on 01.01.2005, thereby paving the way for product patents.

This deliberate strategy of denying product patent protection to pharmaceutical inventions is traceable to the Ayyangar Committee Report, a report that formed the very basis of the Patents Act, 1970. The Committee found that foreigners held between eighty and ninety percent of Indian patents and that more than ninety percent of these patents were not even worked in India. The Committee concluded that the system was being exploited by multinationals to achieve monopolistic control over the market, especially in relation to vital industries such as food, chemicals and pharmaceuticals.

The Patents Act has been amended keeping in view the development of technological capability in India, coupled with the need for integrating the intellectual property system with international practices and intellectual property regimes. The amendments have also been aimed at making the Act a modern, harmonised and user-friendly legislation to adequately protect national and public interests while simultaneously meeting India’s international obligations.