Patentability Criteria and the 'Utility' of Section 3(D): From 'Strong' IP Regimes to 'Stronger' R&D Regimes
Posted: 13 Nov 2017
Date Written: November 10, 2017
It is not uncommon to hear the terms ‘weak’ or ‘strong’ appended to patent laws of developing versus developed countries. The common trend is to label regimes that grant a broad scope of protection (including the term and type of protection) to inventors as ‘strong’ systems, and label those that grant a narrow or more limited scope of protection, as ‘weak’ systems. What is missed in this debate of ‘weak’ versus ‘strong’ is the impact of the patent system on the nature and quality of R&D on the one hand, and on the nature and quality of innovations resulting from such R&D on the other. In this context, a more worrying trend is the grant of patents to improved versions of existing pharmaceutical compounds, even while these improved versions do not bring any added value to the consuming public.
Using the example of section 3(d) of the Indian patents act, recent landmark cases decided thereunder, as well as a recent controversy involving a blockbuster drug, the paper argues that patent law and policy, to the extent that it acts as a signal for the direction and scope of R&D encouraged by the State/society in question, must raise the bar on the standard of novelty, non-obviousness and utility expected from inventions, in return for the exclusivity granted to them. The paper further argues that the basis on which regimes are currently labelled as ‘weak’ or ‘strong’ needs to be reversed and re-thought if the society wishes to overcome problems ranging from patent thickets to evergreening.
Keywords: Section 3(d), India, Patent Law, TRIPs, R&D, Evergreening, Patent Quality
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