Saturday, June 9, 2012

Scope of Research Exemption under Section 47 of Patents Act

In my last post, I took the view that Section 107A(a) does not exempt any and all research from infringement. The Section only permits use of a patented invention for purposes which are reasonably related to development and submission of information to regulatory authorities inside or outside India. Strictly speaking, this is not a “research exemption”, it is a regulatory exemption.

That said, I am not of the opinion that the Patents Act does not provide for research exemption. My only contention is that Section 107A(a) is not the provision to be looked into for that purpose.

I am sure most or all of our readers know that the grant of a patent is subject to restrictions under Section 47, one of which is under sub-section 3. Section 47(3) refers to use of a patented invention for the “purpose of merely of experiment or research including the imparting of instructions to pupils”. Following are the questions that need to be addressed:
1. Why does the provision use “merely” before experiment or research?
2. Why does it include, and hence in a sense, equate imparting of instructions to pupils with “merely of experiment or research”?

The spirit behind these questions is to understand the scope and extent of “research exemption” available under Section 47(3). Following are a few questions for our readers to ponder over and volunteer with inputs:
A. Is it possible to argue that the use of “merely” before experiment or research is to give an “academic” hue to the research?
B. Is it possible to argue that the exemption extends only to the extent that any person may dismantle a patented invention to understand it better?
C. Under Section 47(3), can a patented invention be used as a research tool without the consent of a patentee to build a better product or evolve a better process?
D. Under Section 47(3), can a patented invention be put to a different use than was intended by the patentee, without the consent of the patentee for the purposes of research?

I don’t have answers to these questions, but I raise these for consideration by our readers. I shall go through provisions and case laws in other jurisdictions to look for an interpretation which comes closest to justifying the phraseology of the Indian provision.

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