Honour the deal

Time seems to be running out for India to meet the December 31, 2004, deadline set by the World Trade Organisation (WTO) for aligning the country's patent regime with global norms and the provisions of the agreement on trade-related intellectual property rights (TRIPs).

The shift for India has to be from process patenting to product patenting. Though the Bill to amend the Patents Act for this purpose is ready, its passage by both houses of Parliament in the current session seems uncertain.

And, for a change, the Opposition may not be responsible for the delay. There are problems within not just the ruling UPA but also within the government itself.

The fallback option of introducing the new law through an executive ordinance, as indicated in certain official quarters, may also not be available for the same reason.

Apprehending just such a move from the government, the Left parties, who have been demanding further debate on the Bill before its introduction, have changed their strategy and are now pitching for the introduction of the Bill but a reference after that to a select committee of Parliament. Such a course would firmly rule out meeting the December 31 deadline.

The Left parties' opposition emanates largely from their perception that the space available within the TRIPs agreement for relaxations in the patent regime on account of consumer or wider public interest, has not been fully capitalised upon.

Some ministries are said to have reservations about certain provisions of the proposed Bill. The grant of provisional patent protection to the innovator after the filing of an application could, they fear, be used unfairly to block the entry of generics into Indian markets.

This fear is shared by others as well. There are also fears about the "ever-greening" of patents by claiming new uses for currently patented products.

These apprehensions need to be viewed against the backdrop of the second amendment to the patents law, brought about in 2002, which sought to address some of these issues through measures like modifying the definition of patentable inventions and providing a degree of protection to indigenous knowledge and local R&D.

Despite this, it is possible that some loopholes in the final amendment Bill could be exploited for vested gains. Specifically, the provision of both pre- and post-patent challenge can lend itself to such abuse.

Whatever the fate of the proposed Bill, the pharmaceutical and other industries knew of the switch to product patenting and have had nearly 10 years to prepare themselves.

Those who still feel nervous have largely themselves to blame. If the country misses the deadline for this change, the consequences could be grim in terms of wide-ranging sanctions on exports. This is something the country cannot afford.

Urgent action is required to draft the Bill properly and get parliamentary approval during the current winter session.