The patent Issues

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Infringement of a Patent

Provisions for Grant of patents:

(1) Where an application for a patent has been found to be in order for grant of the patent and either—

(a) the application has not been refused by the Controller by virtue of any power vested in him by this Act; or

(b) the application has not been found to be in contravention of any of the provisions of this Act, the patent shall be granted as expeditiously as possible to the applicant or, in the case of a joint application, to the applicants jointly, with the seal of the patent office and the date on which the patent is granted shall be entered in the register.

(2) On the grant of patent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.]

Burden of proof in case of suits concerning infringement

(1) In any suit for infringement of a patent, where the subject matter of patent is a process for obtaining a product, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process if,—

(a) the subject matter of the patent is a process for obtaining a new product; or

(b) there is a substantial likelihood that the identical product is made by the process, and the patentee or a person deriving title or interest in the patent from him, has been unable through reasonable efforts to determine the process actually used:

PROVIDED that the patentee or a person deriving title or interest in the patent from him, first proves that the product is identical to the product directly obtained by the patented process.

(2) In considering whether a party has discharged the burden imposed upon him by subsection (1), the court shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court that it would be unreasonable to do so.]


Defenses, etc. in suits for infringement

(1) In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for-defence.

(2) In any suit for infringement of a patent by the making, using or importation of any

importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.

Compulsory licensing- issues

There are many issues relating to the grant of patents and there are no simple solutions that would satisfy all sections of society-manufacturers, consumers, overseas companies operating in India, particularly in the pharmaceutical sector and non-governmental organizations interested in protecting the environment and the country’s unique resources.

Compulsory licenses are issued in public interest, but they have generated much criticism, particularly from those in the pharmaceutical sector, The grounds being, the large sum of money invested by them in research and that the remuneration that may be offered will not be the commercial equivalent and in certain cases no compensation need be directed by the government. Since some countries pointed out that Article 31(f) of TRIPS only authorized the grant of compulsory licences ‘predominantly for the supply of the domestic market of the member authorizing such use’ the Doha Ministerial Conference clarified.

The Declaration on the TRIPS agreement and public health at the Doha Ministerial Conference of WTO adopted on 14 November 2001 stated that the WTO recognized the importance of intellectual property protection: for the development of new medicines and also the concerns about its effects on prices. The substance at the Declaration was that ‘the agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all’. It emphasized the right of Member countries to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted and also the right to determine what constitutes a national emergency or other circumstances of extreme urgency.

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