From pranesh at cis-india.org Tue Dec 21 17:33:59 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Tue, 21 Dec 2010 17:33:59 +0530 Subject: [Commons-Law] Test mail. Message-ID: <4D1097AF.6080306@cis-india.org> Test. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Tue Dec 21 17:33:13 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Tue, 21 Dec 2010 17:33:13 +0530 Subject: [Commons-Law] Test Message-ID: <4D109781.5090804@cis-india.org> Test. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Thu Dec 23 23:30:06 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Thu, 23 Dec 2010 23:30:06 +0530 Subject: [Commons-Law] "s.3(d) has little effect on patent prosecution": Sampat Message-ID: <4D138E26.5010101@cis-india.org> Dear all, Bhaven Sampat of Columbia University recently presented a paper at WIPO, titled "Institutional Innovation or Institutional Imitation? The Impacts of TRIPs on Indiaʼs Patent Law and Practice" in which he questions the radicalness of s.3(d) (subject matter bar on incremental pharma innovations) which was introduced to limit the harm caused by TRIPS, and highlights the differences between law (which might be lenient) and practice (which he finds is not). The paper: http://goo.gl/rZigz >From IP Watch: http://goo.gl/0NFqM [snip] The study, titled Institutional Innovation or Institutional Imitation? The Impacts of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on India’s Patent Law and Practice [pdf], examined all patent applications during the transition period allowed under TRIPS before the implementation of the agreement. India employed what is known as a “mailbox” option, a transitional provision for developing countries that did not have previous product patent protection to hold patent applications from 1995 until their required implementation of TRIPS on 1 January 2005. “The laws on the book do not map neatly with laws in practice,” Sampat said, as it appeared that the Indian patent office lacked resources and expertise to make the subtle determinations that would determine a patent falling under the scope of section 3(d). The study looked at all pharmaceutical patent applications filed in India during the transition period, with a focus on two international patent classes commonly used to characterise drugs, and checked the status of those applications in July 2010 to find out which had been granted, were pending or had been rejected or withdrawn, Sampat said. The author then compared the Indian grant rate to the European Patent Office for similar patent requests. It appears that “rejected applications at the EPO are much less likely to be granted by the Indian Patent Office, both because they are more likely to be rejected and to be pending.” The study found that “despite much discussion about the novelty and international uniqueness of India’s patent laws, in practice … the 3(d) provision has little effect on patent prosecution,” which seems to have been highlighted by several scholars based on their observation on implementation of intellectual property rights in practice. In India, according to the study, “weak intellectual property rights on the books may be accompanied by strong ones in practice.” The tailoring of the Indian patent standards to limit patents on incremental innovations, which “dominate drug patenting in the developed world,” can be seen as an “institutional innovation”, according to the study. However, in practice, resource constraints and “other pressures” may lead to “institutional imitation,” where the IPO would copy developed-country practices and standards. The “impacts of TRIPS in India will be determined by the extent to which India sticks to, or departs from, international patentability standards,” it said. Empirical analysis presented by the study tends to suggest that “the pharmaceutical industry … may be overly concerned about 3(d),” and Indian policymakers not concerned enough “if its patent office is not enforcing its patent laws.” According to the study, so-called incremental innovations at the EPO might be more difficult to obtain than in India, in particular because of obviousness or inventive step reasons that serve that purpose. Developing countries aiming at limiting patents on incremental innovations might consider implementing high inventive step requirements, Sampat said, and “might be a less politically inflammatory way for India” to achieve the same goals as 3(d) intends. [/snip] Cheers, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283