TRIPS and Indian Patent Law

1The TRIPS Agreement is a step towards the international protection of intellectual property rights. (Pfizer Products Inc v BL & Co (2002) 25 PTC 262 (Del).) The TRIPS Agreement had a lasting effect on the changing values with regard to intellectual property laws in developing countries. In effect, TRIPS was a consolidating agreement, as it required member nations to comply with arts 1 to 12 of the Paris Convention 1967. TRIPS, which is one the agreements under the World Trade Organisation (WTO) is also regarded as a standard-setting agreement, as it increased the level of standards with regard to patentability, rights, disclosure requirements, exceptions to patentability, authorised uses and term of the patent. (TRIPS Agreement, arts 27 to 34.)

2The impact of the TRIPS Agreement on the Patents Act 1970 has been well documented. (See Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries, OUP, 2001; Sudip Chaudhuri, The WTO and India’s Pharmaceuticals Industry, Patent Protection, TRIPS, and Developing Countries, 2005.) The provisions of the TRIPS Agreement pertaining to patents have been fully incorporated into the Patents Act 1970 through a series of amendments culminating with the Patents (Amendment) Act 2005. Some of these provisions have already come under judicial scrutiny. India is a signatory to the TRIPS Agreement since its inception in 1995. The TRIPS Agreement is binding on all its signatories. But the Board of Appeal of the EPO has held that it is not bound by the TRIPS Agreement as the EPO was not a signatory to the same. The Board of Appeal however recognised that the TRIPS aimed at setting common standards and was an indicator of modern trends. (T1173/97 IBM/Computer programs [2000] EPOR 219, pp 224–5 (Technical Bd App).)

3In EMD Millipore v Assistant Controller of Patents and Designs (2025) the Delhi High Court notes that “India’s communication to the Negotiating Group on TRIPS Agreement during the Uruguay rounds of multilateral trade negotiations, suggested express mentioning of the exclusions from patentability as is followed in patent laws across the world”, that “the suggestion made by India, if adopted, would have acknowledged a distinction between in vivo and in vitro methods.” But “the final text of the TRIPS Agreement under the Article 27.3 (a), which also excluded diagnostic, therapeutical and surgical methods, makes no such distinction between in vivo and in vitro methods” (para 54).

4The Doha Declaration will be instrumental in interpreting those provisions of the TRIPS Agreement that have been incorporated into the Patents Act 1970. (WTO Ministerial Conference, Fourth Session, Doha, 9-14 November 2001, Declaration on the TRIPS Agreement and Public Health, WT/MIN (01)/Dec/2.) The declaration states that member countries shall have the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted. It also states that the TRIPS Agreement ‘can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all’. (Ibid, para 4.)