Statement by India on Agenda Item 6 (v) on the subject of Transfer of Technology, delivered by Dr. Sumit Seth, First Secretary ( Economic ) during the 22nd meeting of Standing Committee on the Law of Patents

Madam Chair

India has recently launched a multipronged IP Initiatives to drive the flagship programme "Make in India". Make in India is designed to facilitate investment, foster innovation, enhance skill development, protect intellectual property and transform India into a manufacturing hub.

Several measures have been taken by the Government of India to ensure continuous and unending improvement of the India's IP ecosystem. The idea is to promote creativity, to develop the culture of respecting innovations. Our delegation would like to submit a detailed document to the WIPO secretariat with the request to put in on records of the meeting and consider to share it also on WIPO's website for wider dissemination of the same

Madam Chair,

With respect to transfer of technology, the Delegation of India reaffirms its view in the last SCP meeting that "from the public interest aspect, transfer of technology was the central theme of the patent system. The protection and enforcement of the patent rights should contribute to the promotion of technological innovation and dissemination of technology, retaining the mutual advantage of producers and users of technological knowledge and in a manner conducive to the social and economic welfare and to a balance of rights and obligations". Further, the Delegation of India would like to recall that the objective of TRIPS agreement is "...transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations" [Article 7]. It is also recalled that the principle of TRIPS agreement, inter alia, is to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology [Article 8].

To effect the maximum utilization of patent specification for inducing the transfer of technology, Article 29 of the TRIPS agreement, stipulates that "Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application". The use of "shall" and not "should" makes this Article mandatory. Further, Article 5 of the Paris Convention is modelled on the basis of understanding of utilizing Patent as a tool for the transfer of technology.

Considering all these factors, this is to be stressed that although the quid pro quo of the Patent System is disclosure embedded in the specification, it is time to trace the affectivity of the patent system, as a standalone system, in the process of transfer of technology. In this regard, the Committee may recall that since the discussion in SCP resumed at the 12th session, India and other DCs had been consistently pressing for the discussion on the issue of sufficiency of disclosure and transfer of technology, which has eventually been agreed and adopted in the agenda for the present session. In the patent system, in order to transform the patented invention into a technical reality, if a skilled person in a particular country, where a patent application was filed or a patent was granted, requires a help of other secret technologies, which are outside the coverage of the patent, and he is not able to transform the invention into a technical reality using the patent as a stand-alone document, which means that the basic purpose of the patent system in that particular country is not fulfilled and such inability of transforming the invention into technical reality poses a serious challenge to the very purpose of the patent system. Therefore, the role of the patent system as a stand-alone system, in which the transfer of technologies are affected by the patent system independent of any know-how or show-how, had not been yet firmly established, as can be seen from the practical examples in the document, SCP/21/10.

According to India's Patents Act, the patent specification should disclose fully and particularly the invention and its operation or use and the method by which it is to be performed, and the best method of performing the invention, which is known to the applicant and for which he is entitled to claim protection. Therefore, in our considered view, the document, SCP/22/4 concerning the study on sufficiency of disclosure could also be considered under the transfer of technology, as it is closely related to the issue of transfer of technology as well.

We believe that the entirely rosy picture of the transfer of technology riding on the vehicle of the patent system is only a fairy tells and there is need to do something more with the issues of transfer of technology vis-a-vis the issue of sufficiency of disclosure.

Madam Chair, we express our readiness for a meaningful participation in that regard.

Thank you, Madam Chair.

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