A fine balance

India can really get going when it needs to, even in the midst of troubled times both inside and outside. This was proved last week by the smooth passage of the Patents (Second Amendment) Bill through both houses of Parliament. Some amendments were accepted, others were discussed and clarified in the House.

All said and done, this is the best thing that could have happened for the Indian industry, post-World Trade Organisation (wto) /Agreement on trips (Trade Related Aspects of Intellectual Property Rights). Having ratified both, as founder-member, India had the obligation to make Indian patent law trips-compliant.

The First Amendment (Act 17 of 1999, with effect from January 1, 1995) provided for emr (exclusive marketing rights) in compliance of Article 70.8 of trips' transitional arrangements. Even here, before the bill was passed, the government took care to add, "not including an article or substance based on the system of Indian medicine as defined in section 2(1)(e) of the Indian Medicine Central Council Act, 1970 (48 of 1970) and where such article or substance is already in public domain'.

Similar wisdom was evidently visible in the drafting (and last minute amending) of the second amendments.

Traditional knowledge has been excluded from patentability by adding a new sub-section (p) under section 3 (what is not patentable). Microorganisms are now made patentable (as required under trips). The ambiguities in definitions (or lack of them) could work both ways in microbiological patenting. While patent term has been extended to 20 years uniformly without discrimination in the field of technology (earlier a lower term was applicable for process patents on food, drugs and medicines), product patenting "per se', was postponed to the Third Amendment Bill to be introduced prior to January 1, 2005 (emrs become product patents post-2005 or post third amendment). Even unexpired patents (live currently) will have extended life for 20 years.

A majority of the amendments moved on the floor of the House were to further liberalise (smoothen) compulsory licensing procedures. An amendment to give effect to the Doha Declaration was also officially incorporated. Procedure to deal with grant of licence