6.1.1 Evolution of the patent system
Intellectual property (IP) rights are governed by national law, which for members of the World Trade Organization (WTO), shall be in conformity with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).1 The TRIPS Agreement sets out the objective of IP rights in Article 7:
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
As a member-nation of the WTO, India was required to amend or enact laws to conform to the TRIPS Agreement. However, this was a challenge for India. A significant reason was that, unlike many other countries, such as the United States of America (U.S.), where the Constitution recognizes the promotion and progress of science and arts and secures exclusivity granted to authors and inventors, the Constitution of India only encourages Indian citizens to have a scientific temper and prescribes a duty to develop the spirit of inquiry and reform.2 The Constitution of India mandates that no one shall be deprived of “property” except with the authority of law.3 Since patents are “property,” there is a positive constitutional entitlement to the grant and recognition of patents. The non-enforceable – but critical – chapter of the “Directive Principles of State Policy” in the Constitution of India further directs the Government to ensure the promotion of public health,4 the reduction of inequalities5 and the securing of systems that ensure ownership and control of resources for the common good.6 The basis and limitations for IP rights are, therefore, the right to property, the directive principles of state policy and the fundamental duties of citizens, apart from the various laws enacted periodically.
The journey of the Indian patent regime is reflected in three different periods: colonization, post-independence and globalization.7
Colonization. India inherited its patent regime from the British rule. When the British colonization of India ended, the Indian Patents and Designs Act, 1911, was in force and had created a system of patent administration in India under an administrative office – the Controller of Patents and Designs.
Post-independence. India enacted its first independent patent law in 1970. It came in the backdrop of two committees constituted to make recommendations: the Bakshi Tekchand Committee in 1949 and, later, the Justice Rajagopal Ayyangar Committee. Focusing on the special socioeconomic conditions in India, the recommendations of these two committees resulted in far-reaching changes in patent laws. Some of the significant changes introduced were with respect to food and drug patents, compulsory licensing, and connected working requirements. The law enacted in 1970 is credited with the growth of various industries, including the pharmaceutical industry, which, in two decades, gave India the distinction of being called “the pharmacy of the world” as Indian drug companies began exporting reasonably priced medicines to many countries.
Globalization. In 1991, India liberalized its economy and adhered to the General Agreement on Tariffs and Trade (GATT 1947), which was succeeded by the WTO, resulting in amendments being introduced in line with the TRIPS Agreement. These amendments saw India bring about fundamental changes permitting product patents in food, medicines and agrochemicals. The flexibilities in the TRIPS Agreement were used to maintain a balance: ensuring that the amendments would be gradually made systemic rather than forcing the closure of already-functioning industries. Statutory provisions relating to chemical and drug patents, patentability and other aspects of the amendments were tested repeatedly in the courts and were upheld as being within the Constitutional scheme while being fully compliant with the TRIPS Agreement. The judgment of the Supreme Court in Novartis v. Union of India8 recognized the need to curb the “evergreening” of patents while acknowledging the need to grant patent protection to incremental innovations. After Novartis, Indian courts have granted interim injunctions to protect patentees’ rights in pharmaceutical9 and agrochemical inventions.10 The courts have also protected claims to standard-essential patents (SEPs) by granting interim injunctions to secure the patentee’s right to royalties even pending trial.11 Courts have granted permanent injunctions12 and damages (in quite significant amounts)13 in cases of patent infringement and have also denied interim injunctions in appropriate cases.14 Each case has been decided on its own facts on the basis of settled legal principles. A current review of decisions would show no pro- or anti-patentee bias in the adjudication of patent cases.