Patents

Profiles of the Indian Patent System

During the 2006 American Intellectual Property Law Association annual meeting in Washington, D.C. the Intellectual Property in the Far East Sub-Committee received an interesting briefing from D.C. Gabriel. Mr. Gabriel’s very detailed brief entitled “Profiles of The Indian Patent System” provided the members information concerning recent changes to India’s Patent System and was replete with examples that compared India’s Patent Laws to United States Patent Laws.

The focus of the briefing was on the 2005 Indian Patent Act which provides for a 20 year patent term and harmonizes Indian Patent Laws such that they are now fully TRIPS compliant. Also the 2005 Indian Patent Law provides for a Best Mode Requirement, analogous to U.S. Patent provisions found at 35 U.S.C. 112, 1st paragraph.

Of interest to attorneys who might practice in India are patent rules/laws which allow for early patent grants (within one year from application), pre grant opposition rules, and patentability laws that will make inventions based on traditional knowledge non-patentable in India. The later is very interesting concept and Mr. Gabriel focused us on an example of this patent provision based on the substance Turmeric.

Turmeric is plant and its rootstalk is ground into a power, producing a substance known for centuries in India to have several uses and health related properties. However, when foreign pharmaceuticals sought to patent claims related to the healing properties of Turmeric, those patents were denied based on the traditional knowledge provision in India’s Patent laws. That’s because the healing properties of Turmeric were commonly known in India and centuries old documentation was even found that was used basically as a “prior art reference” to deny the claim. This is analogous to showing that the Turmeric claims were in the public domain.

Furthermore it is important to note that there is somewhat of a “statute of limitation” for filing infringement claims in India. It is three years from when the plaintiff obtains knowledge of the infringement. The patent practitioner in India must also note that India has four patent offices and a patent appellate tribunal for appeals.