Trumping TRIPS: Indian Patent Proficiency and the Evolution of an Evergreening Enigma
Oxford University Commonwealth Law Journal, 18:1, 16-45, DOI: 10.1080/14729342.2018.1455479
30 Pages Posted: 30 Jul 2018
Date Written: April 11, 2018
Section 3(d) of India’s Patents Act forbids patents on pharmaceutical substances that do not demonstrate a significantly enhanced efficacy over and above prior known substances. This article discusses the long and tortuous history of the provision. Only after an extended period of difficulty did India get to grips with World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and interpret it strategically to benefit the nation and its industry. This sophistication reached a near crescendo with the emergence of section 3(d), its crude drafting notwithstanding. India’s efforts to tailor its patent regime to promote the national interest whilst remaining compliant with TRIPS stands in stark contrast to a number of other countries that have simply toed the line of the developed world’s maximalist intellectual property (IP) agenda. As such, it represents a significant milestone and a valuable lesson in the IP and development debates.
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