A patent is an exclusive right granted, to a person, who has invented a new and useful article or an improvement in an existing article or a new process of making an article for a fixed period of time.
The fundamental objective behind grant of a patent is to provide incentive for innovation. The incentive is the exploitation of the invention at the commercial level so as to enable the inventor to make profit from the invention thereby taking care of the huge expenses incurred and also to prevent him from keeping it as a trade secret. This acts as a catalyst for the inventor to invest capital in new line of manufacture or devise new processes of manufacture of an article and also precludes competitors to get the same results as that of the inventor’s work with impunity. Thus the principle of ‘incentive for innovation’ underlies the theory of patent protection.
Added to this, is the phenomenal importance of improvement in technology in the public interest as inventions conforming to the prohibited subject matter are not patentable.
Patents stimulate innovation, comes under the scanner in the field of medical sciences, drug discovery and life saving drugs due to the observance of "evergreening of patents" phenomenon. Evergreening generally is extending the monopoly beyond the term of the original patent by securing multiple patents covering a variety of inventive aspects in respect of a basic invention in a drug. This plurality of patents directed at divergent inventive aspects can at times lead to extension of patent terms.
Section 3 (d) of the Indian Patents Act stipulates that modifications of already known medicines cannot be patented unless such modifications make the drugs significantly more effective, seeking to curb evergreening. In other words incremental innovations based on one substrate is hindered from patentability unless the product shows enhanced efficacy.
Novartis A. G. has challenged the constitutional validity of S. 3 (d) before the Madras High Court asserting that it is violative of TRIPs, after being denied patent for its drug "Glivec" [beta crystalline polymorph of Imatinib mesylate] a cure for chronic myeloid leukemia. It was held insufficient to meet the requirements of Section 3 (d) of the Patent Act, 1970 as amended by Patent (Amendment) Act, 2005. Novartis’ invention of Glivec is prior to 1995, however, the company had filed a new patent on the crystalline form of Imatinib mesylate (Glivec’s active ingredient).
The significance of this case is hard to overstate but the contention of the Swiss pharma major, Novartis AG, that incremental innovation stimulates invention/innovation and that additional hurdles in patentability of an invention, apart from the basic patentability criteria will dissuade inventors, is certainly going to hot up the scene in Indian intellectual property protection.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
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