NEWSLETTER : ARCHIVE

ARTICLE NO. 1

To comply with the requirements of WTO (for providing pipeline protection for protection of Drugs and Agrochemicals till 2005) and the deadline set by the Dispute Settlement Board, a Patents Amendment Ordinance 1999 has been promulgated by the President of India.

For the Ordinance to mature and result in the amendment of the India Patents Act, 1970, the Bill has to be passed by both the houses of the Indian Parliament. The Bill to amend the Indian Patents Act, 1970 has already been passed by the Rajya Sabha (Council of States) and is now pending before the Lok Sabha (House of the people.)

The main provisions of this Bill are :-

1. It comes into effect from 1^st day of January 1995 (i.e. in retrospect).
   
   
2. It affords the Applicant who has filed after January 1, 1995 a WTO BLACK BOX Application for Drugs and/or Agrochemicals, the right to Exclusively Market the product related to the said Patent Application in India for a period of five years on fulfilling under-mentioned conditions on or after January 1, 1995 :-
   • That a Patent Application has been filed for the said product in the basic country which should be a Convention country.
   • That subsequently a WTO BLOCK BOX PATENT APPLICATION has been filed in India for the same product.
   • That the Patent has been granted in the basic country or in any Convention country and marketing rights for the product has been obtained in such country from concerned authorities.
   • That marketing rights are obtained in India from concerned authorities for the product relating to the WTO BLACK BOX PATENT APPLICATION.
     
     
3. The Central Government of India has reserved the right where adequate evidence in public interest is present, to cancel the Exclusive Marketing Rights given to the Applicant for EMR and to give the same to some other person.
   
   
4. The Central Government of India has also reserved the right to control the price of the product being marketed in India by the Applicant having EMR.

The Bill is yet to be passed by the Lok Sabha and can therefore see some changes before it becomes the law. However, it is certain that the Bill shall see the light of the day. Feel free to revert to us in case we can be of any assistance or if you have any queries.

ARTICLE NO. 2

AMENDMENT OF PAKISTAN PATENT LAW IN ACCORDANCE WITH REQUIREMENTS OF ARTICLE 70 ( 8) OF GATT TRIPs AGREEMENT FOR DRUGS AND AGRICULTURAL CHEMICALS.

FILING OF BLACK BOX APPLICATIONS

ARTICLE NO. 3

Letter from India

INDIA JOINS PCT

You may be aware that India even after becoming a signatory member to the formation of the World Trade Organisation, did not comply with the requirements of the Article 70(8) and 70(9) of the TRIPS agreement which entails protection for drugs and agrochemicals.

While an Ordinance was promulgated by the President of India for providing Mail Box facility and finally providing Exclusive marketing Rights to Applicants filing Applications for pharmaceutical and agrochemicals ( after fulfilling some conditions), it could not see the light of the day since both the houses of the Parliament of India did not pass the same. Although, the Indian Patent Office is allowing filing of Black box Applications for drugs per se and terming them WTO Applications, in the absence of any amendment to the Patents Act, the fate of such Applications is uncertain.

You may be also aware of the fact India lost its case before the Dispute settlement body of WTO which had been approached by US. The Dispute settlement body of WTO ruled that India had failed to set up a legal body for granting exclusive marketing rights for drugs and agrochemicals.

Now India has to meet its multilateral obligations by April 1999 or face sanctions from all WTO nations.

In view of the above deadline, New Delhi the capital and the political and Industrial heart of the country has witnessed a lot of activity towards revision of the Indian Patents Act, 1970.

Here please be informed that the initiation of any action towards revision of the Patents Act is done at the Ministerial level in consultation with Department of Science of Technology.

Also please be informed that an expert committee had been set up to go into the revisions to be made to the Patents Act and to study its implications. The committee consists of former Atomic Energy Chairman Dr. Raja Ramana, Director, Defense Research Development Organisation Dr. Abdul Kalam and Director-Council of Scientific and Industrial Research- Dr. R. A. Mashelkar.

The above identified expert committee had suggested that India put in place a product patent regime by the year 2000, five years ahead of the WTO stipulation for developing countries. The committee had listed ten major points on aligning Indian Patent Laws with international norms and also protecting Indian interests. A transition mechanism for easy access to the mail-box facility and grant of exclusive marketing rights (EMRs) to the mail box Applicants were among the recommendations.

The Ministerial group consisting of HRD Minister M.M. Joshi, Finance Minister Yashwant Sinha, Commerce Minister Ramakrishna Hegde and Industry Minister Sikander Bakht along with their  counterparts in the Department of Science and Technology have however opted for revised Patents Bill and rejected the transition regime which entailed extending exclusive marketing rights and mail-box facilities.

The Ministerial group and Department of Science and Technology has introduced the new Bill to provide EMR ‘s for Drugs and Agrochemicals in the winter Session of Parliament which ended  in 1998.

We believe that in the year 1999 India would have replaced the !970 Act with a new Act providing Patent protection for Drugs per se. The chances of the Bill being rejected by the Cabinet are remote in view of the fear of sanctions from WTO countries and also since the Bill will not this time experience any Opposition from the houses of the Parliament.

A positive sign towards India’s accession to International Law has been India's signing the Paris Convention and becoming a member of PCT on December 7, 1998.

Another positive sign is the formation of a National Patent Office in New Delhi in place of the four Patent Offices as existing today in Calcutta, New Delhi, Chennai and Mumbai. The National Patent Office shall take care of all Patent Filing in such Offices and shall be staffed with highly qualified and trained Examiners who will be specialists in respective fields.

Having our Office in New Delhi gives us the opportunity to first hand information and therefore we are able to impart the same to our clients, Associates and interested parties.

Feel free to get in touch with us in case you desire any clarification or any additional information regarding Patent Law and Practice in India or for that matter regarding National phase PCT filings in India.

ARTICLE NO. 4

It gives us pleasure to inform you that Bhutan, a country located adjacent to Nepal and bordering on India has The Industrial Property Regulation 1997 which makes it possible now to register Trade and Service Marks.

The requirements for filing an application for a Trade or Service Mark are as follows:

1. The name, address and nationality of the Applicant.
2. List of goods for which registration is sought.
3. The Trademark or Service Mark; if any mark consists of or includes a device or matter in addition to or exclusive of a word mark – ten representations thereof.
4. Priority can be claimed from an application filed in any Paris Convention country; for this a certified copy of the application from the Registry concerned is required to be filed.
5. A power of Attorney in the prescribed form enclosed with this letter; the power does not need to be notarised or legalised but the name and designation of the person signing must be clearly indicated.

Form 16.
Industrial Property Regulations, 1997
(Appointment of an Agent)
Rule 13

I (or We) ................................................................................................................................(a)
....................................................................................................................................................
........................................................................................................................................hereby
authorise....................................................................................................................................
....................................................................................................................................................
....................................................................................................................................................
....................................................................................................................................................
to act as my (or our) agent for .............................................................................................(c)
and request that all notices, requisitions, and communications relating thereto may be sent to such agent at the above address. I (or We) hereby revoke all previous authorisations, if any, in respect of the said proceedings.

By this Power of Attorney, I (or We) further authorise the holder to engage, if necessary, any other legal practitioner/registered Industrial Property Agent.

                                                   ......................................................................................

Dated this................ day of .............................................199 .

To,
The Registrar of Industrial Property.

1. insert full name, address and nationality.
2. insert full name and address of agent (Legal Practitioner), Registered Industrial Property Agent, or a person in the sole and regular employment of thee person appointing the agent.
3. State the particular matter or proceeding for which the agent the agent is appointed by giving references thereto, if known.

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