India & Intellectual Property Rights

HERE is a well-established statutory, ad-
ministrative and judicial framework to safe-
guard intellectual property rights in India, whether
they relate to patents, trademarks, copyright or in-
dustrial designs. Well-known international trade-
marks have been protected in India even when they
were not registered in India.

Computer software companies have successfully
curtailed piracy through court orders. Computer
databases have been protected. The courts, under
the doctrine of breach of confidentiality, accorded an
extensive protection of trade secrets. Right to pri-
vacy, which is not protected even in some developed
countries, has been recognized in India.

Protection of intellectual property rights in India con-
tinues to be strengthened further. The year 1999
witnessed the consideration and passage of major
legislation with regard to protection of intellectual
property rights in harmony with international prac-
tices and in compliance with India’s obligations un-
der Trade Related Intellectual Property Rights (TRIPS).
These include:

1. The Patents (Amendment) Act, 1999 passed by the
Indian Parliament on March 10, 1999 to amend
the Patents Act of 1970 that provides for estab-
lishment of a mail box system to file patents and
accords exclusive marketing rights for 5 years.

2. The Trade Marks Bill, 1999, which repeals and
replaces the Trade and Merchandise Marks Act,
1958 passed by the Indian Parliament in the Winter
Session that concluded on December 23, 1999.

3. The Copyright (Amendment) Act, 1999 passed by
both houses of the Indian Parliament, and signed
by the President of India on December 30, 1999.

4. A sui generis legislation for the protection of geo-
graphical indications called the Geographical In-
dications of Goods (Registration & Protection) Bill,
1999 approved by both houses of the Indian Par-
liament on December 23, 1999.

5. The Industrial Designs Bill, 1999, which replaces
the Designs Act, 1911 was passed in the Upper
House of the Indian Parliament in the Winter
Session, which concluded on December 23, 1999
and is presently before the Lower House for its
consideration.

6. The Patents (Second Amendment) Bill, 1999 to

further amend the Patents Act, 1970 and make it
TRIPS compliant was introduced in the Upper
House of Indian Parliament on December 20, 1999.

In addition to the above legislative changes, the
Government of India has taken several measures to
streamline and strengthen the intellectual property
administration system in the country. The Trade
Marks Registry is also proposed to be further strength-
ened and modernized. As regards the aspect en-
forcement, Indian enforcement agencies are now
working very effectively and there has been a no-
table decline in the levels of piracy in India.

Concerns expressed over
IPR protection & India’s response

Q: India does not provide an effective patent protection
in the pharmaceutical sector.

India does provide for patents in the pharmaceutical
sector. Currently the patents are restricted to the
methods or process of manufacture and not ex-
tended to the substances/products themselves. In
terms of the TRIPS Agreement, India has time till
January 1, 2005 to extend patent protection to this
area. The ten-year transition period available for
providing product patents to pharmaceutical prod-
ucts is within WTO rules.

Q It has been further said that India has failed to meet
its current obligations required under TRIPS Agreement
for implementing appropriate, conforming mailbox and
exclusive marketing rights procedures.

The Government of India has taken the following
steps to meet its obligations:

1. On December 31, 1994, Government of India pro-
mulgated an Ordinance to provide a means to
receive product patent applications in the fields of
pharmaceutical and agricultural chemical prod-
ucts and also for grant of exclusive marketing
tights. Pursuant to this measure the Indian Patent
Office has been receiving product patent applica-
tions in those fields.

2. India has established a mailbox system through
administrative instructions. Numerous applica-
tions have already been filed in this mailbox sys-
tem, and many of them have been filed by US
companies;

3. India has also made changes to its Patents Act to

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