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INDIA - New Patent Act - The Controversies

by P.M.George Kutty

India finally amended its Patents Act and Rules to become fully compliant with TRIPS on 26th Decemer 2004 by an Ordinance and followed by the Act being passed in January 2005. The black box applications filed under the WTO brand from 1/1/1995 were opened for processing. Even though the amendment opens all areas of technolgy in respect of product patents, some controversies have been created in the interpretation of the amendments. Product patent applications in the field of food and chemicals in general which have been filed before 1/1/2005 and are under process have been denied product protection and restricted to process patent only.The patent office view is that since the Act before amendment, by section 5(1)(b) was not allowing the product patent, the amendment can be effected for product patent in these fields only for applications filed after 1/1/2005. Of course in the case of black box applications in the filed of drugs product patents are being granted.

Another area of controversy doing the rounds is that of eighteen month publication. The order of publications is being questioned as pre grant opposition is based on these publications. If a later application is published first, then the earlier application if in the same field cannot be cited for novelty purpose. Another angle in which it is debated is because of the provision of provisional protection as later application if published first will get proviisonal protection earlier than the application which was actually filed first.

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