1. Introduction—

Starting from the colonial times, India has a long history of patent law making dating back from the initial Indian Patents and Designs Act, 1911[1] (hereinafter ‘the 1911 Act’) to the present Patents Act, 1970[2] (hereinafter ‘the 1970 Act’). Enacted with the broad objective of serving as protection for imported machineries and technologies against potential indigenous reverse engineering by foreign trade or manufacturing agencies operative in India or by the Indians, the 1911 Act came into force under the erstwhile colonial regime. However, the Ayyangar Committee Report (hereinafter ‘the Report’) of 1959 marked the history with a significant caveat created in the public interest. Critics had high regard for this report, and it was labelled as a ‘defensive patent policy’. But India’s signing of the Trade-Related Intellectual Property Rights Agreement or TRIPS proved otherwise.

  1. Ayyangar Committee Report through TRIPS Agreement—

The Justice N. Rajagopala Ayyangar Committee was appointed by the government of India to endow the country with a proposal for reworking the 1911 Act which was in operation then and advise the government on the same. The Report had recommended retaining the patent system despite its shortcomings along with major changes.

One of the propositions of the Report was giving allowance to only process patents with respect to inventions associated with drugs, medicines, food and chemicals. The Report pointed out India as a “country whose interests demand urgently the working of patented inventions within as short a time as possible and to the fullest extent reasonably practicable.’[3]

The consequence of the Report can be split into two different timelines during the 20th century, i.e., pre-TRIPS Evaluation and post-TRIPS Evaluation.

  1. Pre-TRIPS Evaluation of the Patent Regime in India:

The framework followed by the 1970 Act was a process-only patent, which connotes that the patent shall merely be granted for the manufacturing process and not for the product itself. The Report brought with it, the drawbacks in this 1970 Act that any other individual could construct the same product through a varying process. In the Indian scenario pharmaceutical and agrochemical products are excluded from getting patent protection under this Act.

Prior to entering the global economy by joining WTO towards the end of the twentieth century, the Indian Patent law merely permitted for process-only patent and not product patent for pharmaceutical inventions. Since there is a perception among the inventors that the product patent grants them a higher level of protection as compared to process patent, they preferred product patent over process patent. On the other hand, the patent regimes of developed nations allowed for product patent rather than process patent.

The main reason behind the developing nations, like India, to adopt the process of patent protection in their patent law was to seek benefit in inventing cheaper methods of making expensive patented products or as such an approach is widely known as ‘reverse engineering.

Despite the Report being identified as ‘permissive’ in nature, it did not promote innovation through original patentable inventions. In other words, the country did see advancement in developing its capabilities in space, nuclear and defence technologies, but due to the lack of any truly reliant and progressive IPR Policy, the frequency of patent filing went down gradually, losing ample professional recognition in the research community.

  • Post-TRIPS Evaluation of the Patent Regime in India:

During the late 1970s, the negotiations on United Nations Conference on Trade and Development (UNCTAD) Code were slowed down and those concerning the Revision of the Paris Convention were blocked strategically to the disadvantage of the developing nations. The developed countries presented an identical; almost like a carbon copy of their own laws in TRIPS instead of giving room for flexibility to the national laws in the Third World countries. And being one of the signatories of the Agreement, India too was obliged to amend its Patent Act in order to comply with the TRIPS provisions. The enforcement of the Patents (Amendment) Act[4] was retrospective from 1st January 1995.

The Report added other perspectives to the already existing provision of the Patent Act. It further aided fostering the progress in the pharmaceutical sector which presented with inexpensive generic medicines which were in fact the cheaper versions of the pricey medicines developed by the innovator drug companies abroad in developed nations.

This benefit terminated accruing once India had signed the TRIPS Agreement. The Agreement was metaphorically a dead end to the Indian companies taking advantage till then of being adept at building new production processes and novel formulations that brought about the generic revolution, which was well-liked worldwide.

The numerous breakthroughs of major technological, pharmaceutical informatics and biotechnology led to the reversal of the past by the developed nations, when they had committed upon assisting the promotion of development in those Third World countries. Upon becoming a signee to the TRIPS Agreement, India was also subjected to the new IPR regime, which was nearly at par with those in force in the advanced OECD nations.

  1. Present Patent Regime in India and ‘Make in India’—

Though the government of India could be attributed to the success of facilitating investment, fostering innovation, enhancing skill development, protecting intellectual property, and building best in class manufacturing infrastructure in the country due to the ‘Make in India’ national programme, which was launched in 2014; nevertheless mong the patents filed over the last six years, the foreign patent registrations have always exceeded the Indian origin patent registrations.

Foreign patents mostly from the US, Japan, and Germany accounted for more than 45% of the patents in the year 2016. Statistically[5] also, the total number of patents filed between 2015 to 2018 were 5,11,947, out of which 3,90,878 constituted foreign patent registrations. The Indian innovators post the launch of the Government’s ‘Make in India’ programme have not gone anything beyond the maximum[6] of 30% share in patent registrations in the country.

This being said, it evidently shows that, despite this national programme’s prima facie success, not much improvement has been seen in the patent registrations of Indian origin as compared to pre-TRIPS Indian patent regime scenario. Though the Ayyangar Committee Report might have tried to accommodate a novel welfare scheme for the country, and even despite the country having made substantial amendmentsin 2005 patent act, the country seems to portray similar or even lower registrations in indigenous patents.

  1. Conclusion—

The observations laid down from the Report describe the Indian legal system to be complicated and ungainly and thus the due proposal by the late Justice Rajagopal Ayyangar regarding the licenses of rights for drug and food article patents shall haunt the nation persistently. Despite the calibre acquired in terms of science and technology and the nation having transformed from the status of a merely developing nation to an ‘advanced developing nation’, the Report only indicates towards the Indian industry being deluded into a deceptive technology trap.

As was precisely put by Homi Bhabha, ‘a quick and assisted take-off but over the years, incapable of independent flight…powered by engines of our own’, portrayed the impact of the Report and India’s signing of the TRIPS Agreement in its entirety.

TRIPS Agreement seems acceptable merely through appropriate balance of competition along with patent law policy so as to match the national needs and the political economy. The Indian Patent Law of 1970 was required to be amended thrice prior to the government authorities inclusive of the Parliamentary Committees made it TRIPS compliant within the transition period given by the WTO.

The developed nations by default appear to exercise an unsaid supremacy over the developing nations as they have the requisite strengths and well-founded legal procedures to overcome any problems so caused. They have enough resources, both fiscally as well as infrastructure to accrue the advantage of the opportunities provided. However, these strengths don’t hold true in case of developing and underdeveloped nations.

Perhaps, the contemporary requirements of the nation could be considered, and the old provisions could be revisited and transformed synergistically in accordance.

[1] Indian Patents and Designs Act, 1911.

[2] Patent Act, 1970.

[3]Report on the Revision of the Patent Law, Rajagopal Ayyangar Committee, September 1959.

[4] Patents (Amendment) Act, 1999.

[5] https://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=IN.

[6] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2019-chapter1.pdf.

About Ayushi Suman 4 Articles
Ayushi is a zealous law student at National Law University, Jodhpur. Her areas of interest include intellectual property law, alternate dispute resolution (‘ADR’) and company law. She is a member of the ADR Committee, an associate editor at the Journal on Corporate Law and Governance, and also holds a position as an executive editor at the Centre for Intellectual Property Blog. She is an IP Holic and a Blogger at IP Press. At this stage of law school, she is discovering various career options through writing papers, courses, internships, and ADR competitions.

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