MNCs may increase their focus on India by creating subsidiaries or entering into collaborations or licensing arrangement with Indian companies.
With the promulgation of the Patents (Amendment) Ordinance, 2004 (`Ordinance') India has complied with its commitment of introducing the product patent regime in India with effect from January 1, 2005. The agreement on Trade Related Intellectual Property Rights (`TRIPS') had allowed a 10-year window to the developing countries to introduce the patent regime. The protection of their pharmaceutical and agricultural products by the developing countries has always been a contentious issue between them and the developed countries, and in recognizing the sensitivity surrounding this issue, TRIPS had provided for special treatment in respect of such products.
Patentable subject matter: The restriction for granting product patent under Section 5 of the Patents Act, 1970 has been removed by the recent ordinance. Therefore, whatever falls within the purview of the definition of `invention' will be patentable in India. The amendment to the Act in 2002 defines invention as "A new product or process involving inventive step and capable of industrial application." Thus, if a product satisfies the tests of patentability, viz., novelty, inventive step (non-obviousness) and industrial application (utility) it can be patented in India. Section 3 of the Act, however, carves out certain exceptions. Under Section 3 (j) "Plants and animals in whole or any part thereof (other than micro-organisms) including seeds, varieties and species and essentially biological processes for the production of plants or animalscannot be patented." This is in line with Article 27.3 of TRIPS. Thus, micro-organisms, which satisfy the patentability criterion may be patented in India. Under Section 3(d) of the Act, the mere discovery of any new property or new use for a known substance is not patentable.
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