'Policy Style' Reasoning at the Indian Patent Office

16 Pages Posted: 2 Nov 2005

See all articles by Shamnad Basheer

Shamnad Basheer

Nirma University - Institute of Law

Abstract

With the introduction of pharmaceutical product patents for the first time (via the 2005 amendments to India's patents act), it is feared that there would be a steep rise in drug prices and a consequential adverse impact on access to important drugs. Civil society proponents argue that the TRIPS flexibilities available were not exploited appropriately and that adequate safeguards were not built in to ensure an affordable supply of medicines. While this concern by civil society has some merit, what it misses is the flexibility that already inheres in the Patent Office to tailor patent protection to suit policy needs. This article argues that the Indian Patent Office has had an interesting history of taking itself to be a policy guardian of sorts and demonstrating a rather conservative approach to the issue of patentability. This policy-style reasoning can be traced back to the Ayyangar Committee report, a document that formed the very basis for the current Indian patent regime. Underlying this report was the clear message that fewer patents resulted in a stronger indigenous industry, particularly in the area of pharmaceuticals and chemicals. This article demonstrates the influence of this policy document on the decisions of the Patent Office even today and posits that, rooted in a system that stressed the virtues of a weak patent system, it is likely that the Patent Office would continue with a conservative approach to the issue of patentability, even with regard to pharmaceutical inventions (that are patentable under the 2005 Act).

Keywords: Intellectual Property, India, Patents, Patent Office, Biotechnology, TRIPS, 2005 Act, generics, public health, access to medicine

JEL Classification: O34, K33

Suggested Citation

Basheer, Shamnad, 'Policy Style' Reasoning at the Indian Patent Office. Intellectual Property Quarterly, Vol. 3, pp. 309-323, 2005. Available at SSRN: https://ssrn.com/abstract=829464

Shamnad Basheer (Contact Author)

Nirma University - Institute of Law ( email )

Sarkhej-Gandhinagar Highway
Gota
Ahmedabad, Gujarat 382 481
India

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