Feroz Ali
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780199463480
- eISBN:
- 9780199086344
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199463480.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in ...
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India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.Less
India’s post-TRIPS (Trade Related Aspects of Intellectual Property Rights) patent law reforms, which incorporates a remarkable array of flexibilities is seen as a counter-harmonization measure in direct opposition to the dominant model of patent law pioneered by the United States. India’s response, which represents an alternative model of confirming to the TRIPS Agreement, has seen stiff resistance in the form of counter-provisions in Free Trade Agreements entered by the US and other countries. Historically, patent systems based on neo-liberalism, like the American model, favour individual pursuits whereas patent systems based on social democracy, like the Indian model, focus on community goals. This distinction manifests in the manner in which the role of the public is defined in the patent system. India’s model is characterized by the emphasis on the public elements in three significant ways. First, in redefining pre-grant opposition by allowing public participation in questioning the ex ante validity of patents. Second, in protecting the public domain by heightening the standard of patentability and requiring the patent applicant to demonstrate technical advance and greater effectiveness of the invention. Third, in providing for compulsory licensing when the public interest is affected by a patent that is not worked locally. The influence of the India’s model has come from mimicry by other countries in following the Indian example. Countries like Argentina, Philippines, Brazil, China, and South Africa have either emulated or strongly favour following India’s path. Such state practices might occasion the reimagination of the TRIPS Agreement as the Access Regime.
Feroz Ali Khader and Srividhya Ragavan
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780199334278
- eISBN:
- 9780199361106
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199334278.003.0018
- Subject:
- Law, Intellectual Property, IT, and Media Law
Though much has been written about the recent developments in Indian patent law, scholarship has not looked beyond the famed §3(d) and compulsory licensing. This chapter introduces a new protagonist ...
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Though much has been written about the recent developments in Indian patent law, scholarship has not looked beyond the famed §3(d) and compulsory licensing. This chapter introduces a new protagonist in Indian patent law: the new standard of nonobviousness. The authors argue that the heightened standard operates as a more objective tool to measure the inherently subjective concept of nonobviousness. By requiring patent applicants to demonstrate technical advancement, the law mandates them to show technical superiority over the prior art, which the authors refer to as the “proof of progress” requirement. The new standard is explained and compared with the nonobviousness standard in the United States. Uniquely focusing on the grant opinions of the patent office involving pharmaceutical patent applications, the authors show how the new standard operates in practice.Less
Though much has been written about the recent developments in Indian patent law, scholarship has not looked beyond the famed §3(d) and compulsory licensing. This chapter introduces a new protagonist in Indian patent law: the new standard of nonobviousness. The authors argue that the heightened standard operates as a more objective tool to measure the inherently subjective concept of nonobviousness. By requiring patent applicants to demonstrate technical advancement, the law mandates them to show technical superiority over the prior art, which the authors refer to as the “proof of progress” requirement. The new standard is explained and compared with the nonobviousness standard in the United States. Uniquely focusing on the grant opinions of the patent office involving pharmaceutical patent applications, the authors show how the new standard operates in practice.
Feroz Ali
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780199463480
- eISBN:
- 9780199086344
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199463480.003.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
Patent rights by their very nature are rights in rem that can be enforced against the public at large. But, surprisingly the grant of such rights is not subjected to public determination. In the ...
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Patent rights by their very nature are rights in rem that can be enforced against the public at large. But, surprisingly the grant of such rights is not subjected to public determination. In the modern world, patent rights flow from domestic constitution and the patent system is dependent on and reflective of the nature of the constitutions. This chapter juxtaposes the constitutional value on patent laws in the US and India. The distinction between the information in the public domain and the information brought forth by the inventor is the hallmark of the patent granted to the inventor. This chapter explains the term Public in relation to the field of patent law and explains the role of the public in the grant and enforcement of patent rights. This chapter also analyses an episode in history where the patent system moved from working models to written specifications as a proof of invention.Less
Patent rights by their very nature are rights in rem that can be enforced against the public at large. But, surprisingly the grant of such rights is not subjected to public determination. In the modern world, patent rights flow from domestic constitution and the patent system is dependent on and reflective of the nature of the constitutions. This chapter juxtaposes the constitutional value on patent laws in the US and India. The distinction between the information in the public domain and the information brought forth by the inventor is the hallmark of the patent granted to the inventor. This chapter explains the term Public in relation to the field of patent law and explains the role of the public in the grant and enforcement of patent rights. This chapter also analyses an episode in history where the patent system moved from working models to written specifications as a proof of invention.
Feroz Ali
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780199463480
- eISBN:
- 9780199086344
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199463480.003.0004
- Subject:
- Law, Intellectual Property, IT, and Media Law
Patents are not granted uniformly across nations as the standards for patentability varies across nations. This chapter analyses standards of patentability, specifically nonobviousness and the ...
More
Patents are not granted uniformly across nations as the standards for patentability varies across nations. This chapter analyses standards of patentability, specifically nonobviousness and the enhancement of efficacy, for pharmaceutical patents. The new definition of nonobviousness laid down by the Patents Act has serious ramifications in terms of raising the bar on inventions that can be patented. A further significance of the new definition is that it places the burden of disclosure squarely on the patent applicant. This chapter then examines the threshold requirement of enhancement of efficacy. The provision itself has been introduced to curb any initiative to patent bioequivalents. The judicial determination of the meaning of the term ‘efficacy’ and the legislative intent behind the provision are explained herein.Less
Patents are not granted uniformly across nations as the standards for patentability varies across nations. This chapter analyses standards of patentability, specifically nonobviousness and the enhancement of efficacy, for pharmaceutical patents. The new definition of nonobviousness laid down by the Patents Act has serious ramifications in terms of raising the bar on inventions that can be patented. A further significance of the new definition is that it places the burden of disclosure squarely on the patent applicant. This chapter then examines the threshold requirement of enhancement of efficacy. The provision itself has been introduced to curb any initiative to patent bioequivalents. The judicial determination of the meaning of the term ‘efficacy’ and the legislative intent behind the provision are explained herein.
