tag:blogger.com,1999:blog-5949922529631180407.post6008306328668224510..comments2024-03-26T01:16:29.449+05:30Comments on The Demanding Mistress: What is “Working” under the Patents Act, 1970?J.Sai Deepakhttp://www.blogger.com/profile/08357301068067861565noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5949922529631180407.post-90482304120575134972013-03-27T00:29:57.606+05:302013-03-27T00:29:57.606+05:30Dear Raj,
Thanks for the comment. Let me reproduce...Dear Raj,<br />Thanks for the comment. Let me reproduce the last line from my post to reiterate my position- "Importation may, at best, supplement a patentee’s efforts in fulfilling his working requirements under the Act, but under no circumstances can import alone constitute working."<br /><br />From the above extracted line, it is clear that I do not believe importation does not contribute towards working. My sole contention is that importation alone cannot amount to working in the absence of domestic manufacture. In other words, if X is the total number of patented goods made available in India on a commercial scale by the patentee, X=A+B, where A is the number of goods locally manufactured and B is the number of goods imported. Under no circumstances can X be equal to B alone is my point. B may be used by the patentee to shore up his numbers towards fulfilling the adequacy of his working requirements under the Act, but the patentee cannot use B alone or "merely" B to claim that he has worked the patent in India to the fullest extent possible. <br /><br />I completely understand the logic of your African example and I had too considered this aspect in an earlier post. However, the question that is sought to be addressed is what does the Act posit, not its reasonableness or fairness. To this extent, the Ayyangar Committee Report remains relevant for good reason: The Ayyangar committee report has specific regard to the issue you raise, namely economics of manufacturing. Further, no amendment to the Act thus far has undermined/altered/eroded the clause (b) of Section 83 of the Act, which forbids "mere" importation. Section 83, under the 1970 version, had only the first two clauses. The subsequent 5 clauses were added in the 2002 amendment. What is even more clinching is that clause (c) of Section 83, which was added in 2002, captures the exact sentiment echoed in Para 38 of the Committee's report, which I reproduce again:<br /><br />"38. I have already set out the considerations which are said to constitute the quid pro quo for the grant of the patent monopoly, namely (1) the working of the invention within the country so as to result in the establishment in the country of a new industry or an improvement of an existing industry which would profitably employ the labour and capital of the country and thus increase national wealth"<br /><br />In other words, local manufacture of the patented invention was seen as a means of ensuring technology transfer providing employment to Indians. Therefore, as the law stands today, the legislative history and the language of the relevant provisions of the Act primarily mandate domestic manufacture, with importation being permitted to supplement the domestic manufacture in order to fulfill working requirements. What is surprising is that the IPAB repeatedly highlights the relevance of the Committee Report, and yet comes out with an unclear stand on the issue of working.<br /><br />Best Regards,<br />Sai.<br />J.Sai Deepakhttps://www.blogger.com/profile/08357301068067861565noreply@blogger.comtag:blogger.com,1999:blog-5949922529631180407.post-55819149846915895542013-03-26T17:12:41.581+05:302013-03-26T17:12:41.581+05:30Sai, working requirement has to be seen from multi...Sai, working requirement has to be seen from multiple sides. The Act, after the 2005 amendment has moved away from the Ayyangar report on this instant. The word "merely" in Sec 83 is important. Inclusion of the word "importation" in Sec.48 is also important. These amendments only show that "importation" is not excluded out of the definition of "working". It is also borne out by the entry(3(b)(ii)) in Form 27. If "working" is equated with "local manufacture" then it will have multiple repercussions on the patent system in this country in general. Let me give one example, say a major company invents a drug for certain tropical disease present in India and certain other African countries. It patents it in all these countries.Based on economies of scale it decides to set up a factory in Africa, now since it is not manufactured in India a CL will be granted on it, even if the requirement of the public is met and reasonably priced as well.This is a catch-22 situation: if doesn't patent it in India it cannot stop people from copying, if it patents then a CL will be granted if "working" is interpreted strictly to mean "local manufacture". Why to invent it in the first place. This is not the intention of the legislature.<br /><br />Regards<br />abrA B Rajasekarannoreply@blogger.com