Treaties and convention related to Patents to which India is Signatory
There are many treaties and conventions related to the patent field of which India has been a signatory. Generally, the treaties signed and its policies followed by all member nations. Some of the treaties to which India has been a signatory are:
Paris Convention for protection of Industrial Property:
The Paris Convention for protection of Industrial Property signed on 20th March 1883 in Paris and was one of the first Intellectual property treaties. The treaty has been amended several times in the years 1900, 1911, 1925, 1934, 1958, 1967 and 1979. Some of the salient features of the treaty are:-
The Treaty highlights the importance of priority for inventors as it gives the right of priority. The right of priority enables the applicant to file a patent application in the other contracting states within a certain period of 12 months for patents and utility models, 6 months for industrial design and marks based on the regular first application filled in one contracting states.
Once the patent application is submitted in other countries within the prescribed time period, the date of priority is handled as the initial filing date on the first patent application that the inventor received in the first contracting states. The right of priority is important as it gives the inventor time to prepare the patent application for submission in other countries and provides the inventor with an edge over other inventors in other countries.
The Paris Convention Treaty gives further provisions in the third part of the international patent law. Some main points are given in this section state that a patent granted in one country does not guarantee that it will be approved in another country.
Patent Cooperation Treaty:
Another treaty of which India has been a part is the Patent Cooperation Treaty (PCT). The PCT is an international patent law treaty which came into force in 1970. PCT provides a common procedure for international patent application to protect the inventions in each of its contracting states. A patent application filed under the PCT called an international application or a PCT application. Salient features of PCT are:-
A PCT application or international application made for filing the patent application in many countries at the same time.
There is a 31 month period for National Phase Entry. (National Phase Entry: After an International patent application, the inventor can file for an application in the country where the inventor wants protection. When one files the patent application in the desired country it is the entry into the National Phase under the PCT). The period for National Phase Entry can be as short as 20 months for certain countries which are members of PCT. After entry of the patent application into the National Phase, national law applies to the patent application for further processing of the application.
Doha Declaration on TRIPS Agreement:
Another agreement of which India has been a part is the Doha Declaration. The Doha Declaration is based on the TRIPS Agreement and Public Health and came into effect on November 14, 2001, after the WTO Ministerial Conference of 2001 was held in Doha. It revealed the flexibility provided to TRIPS member nations in evading patent rights for better access to useful medicines. Some of its features were:-
The TRIPS agreement does not and should not prevent members from taking measures to improve and protect public health. Moreover, the Agreement was enacted to protect public health and, more particularly, to promote access to medicines for all.
Based on the above rule, following flexibilities were noted:-
To use the rules of interpretation of the public international law the provisions of the TRIPS Agreement implemented on the lines of the object and purpose of the Agreement. To grant each Member a right and a freedom to decide the basis upon which the licenses are being granted. To grant a right to each member nation to determine what is actually meant by a national emergency or extreme urgency. It can include public health crises like HIV/AIDS, tuberculosis, malaria and other epidemics. To provide freedom to each member for establishing its own regime for any exhaustion without difficulty, as described in Articles 3 and 4 (relates to Most Favored Nation Treatment (MFN) and national treatment provisions). To instruct the Council for TRIPS to find a solution to the problem related to insufficient or no manufacturing capacities with the WTO members in the pharmaceutical sector and to report to the General Council before the end of 2002.
The current status for the above flexibilities is:-
In 2005, WTO members agreed to amend the TRIPS Agreement to make the temporary waiver contained in the August 30 WTO Decision as permanent. Under this decision, a procedure created that could ease the WTO members to issue compulsory licenses for exporting versions of patented medicines to countries with little or no manufacturing capacity in the pharmaceutical sector.
TRIPS (Trade-Related Aspects of Intellectual Property Rights):
The TRIPS agreement is an international legal agreement of all the member nations of the World Trade Organization (WTO). TRIPS agreement set down minimum standards for many forms of intellectual property as applied to other nations of WTO member nations. In order to comply with all condition of TRIPS agreement, India has made changes to the Patent Act, 1970 in the years 1999, 2002, 2005 respectively.
The above-mentioned treaties describe the patent conventions for all its signatory countries including India. However, the pattern followed for registering a patent in India is a step by step process based on the Patent Act, 1970.