A Critical Study of Post Trips Patent Regime in India

Abstract

The TRIPS agreement has provided strong mandatory compliance to be followed by the member states of the World Trade Organisation. The WTO members were in an obligation to implement the TRIPS Agreement within the respective transition period. India being a developing country, 1st January 2005 was the expiry date for complying the TRIPS obligations. The Patents Act, 1970 was amended three times within the TRIPS transition period to comply the obligations under the TRIPS Agreement as The Patents (Amendments) Act, 1999, The Patents (Amendments) Act, 2002 and The Patents (Amendments) Act, 2005. However, the Patent Office, through the above- mentioned amendments, incorporated several provisions and procedures beyond the scope of the TRIPS obligations in the Patents Act and Rules. The amended Patents Act establishes a new procedure without considering the practical application of the amended laws and procedure and the adverse effect of the reforms on the patent applications that complicated the prosecution and administration of patent regime. newlineThe Indian Patent Office (IPO) had already brought in the excellent infrastructure like digitalisation, e-filing for patent applications and providing examination report and other office actions by email to the applicants or agents. Human resource increased considerably during the post-TRIPS period. The present strength of 526 Examiners and 141 Controller of Patents is sufficient Human Resources to handle filing up-to 1,00,000 applications per year while the actual filing is below 50,000. newlineThe basic principle of the grant of patent according to the Patent Act 1970 is to encourage the inventions and to ensure that the inventions work in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay. The tenure of a patent is 20 years from the date of application. The Patent Act and Rules specifically provided the time frame for Patent prosecution and grant of the patent. The researcher intends to analyse the reason for the inordinate delay