Statement by India at the Nineteenth Session of WIPO Standing Committee on the Law of Patent (SCP) delivered by Smt. Alpana Dubey, First Secretary (Economic) on 25 February 2013

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Mr Chairman,

 At the outset, Indian delegation would like to compliment the WIPO secretariat for the efforts in compiling and updating the documents provided by member states and making them available on time at this session of the Standing Committee on the law of Patents (SCP) for discussion. The delegation is confident that the deliberations in the next few days will be very encouraging and useful.

Mr Chairman, the Indian delegation would like to align with the statement made by Brazil on behalf of DAG. India would like to reaffirm its views expressed in the last SCP meetings on the issues related to transfer of technology, opposition system, Client-Attorney privileges, Quality of Patents, International Patent System and Patents and Health. It may be observed that time and again Indian delegation has emphasized that, ever-greening policies for patenting incremental innovations without substantial improvement would have adverse impact on delivery of healthcare services.

Indian delegation notes with concern that an agenda of TRIPs plus harmonization is being pushed in this Committee.

Mr Chairman with regard to sharing of search and examination report of the countries, the provisions of section 8 of the Indian Patents Act allows the examiners to seek any information including the search and examination report or prosecution history of any foreign country from the applicant during the process of examination of the application and therefore they can freely use the search and examination report as well as prosecution history of such foreign countries. In our views   search and examination work carried out by all national office is very essential and important and therefore, it is a freedom for national Offices to conduct whatever work which is considered necessary in order to properly determine whether the specific requirements of their national laws in particular relating to patentability were met by applicants. We are of the view that each member country should be free to adopt any policy keeping in view their level of resources and capacity. Therefore India has concern over formulating any norms for such work in future.

Mr Chairman, as regards quality of patent, India firmly believes that Patent Offices across the world alone would not be able to maintain the quality of patents without maintaining the standards of examination and search. Most of the Patent offices of developing countries are in transition phases and need to upgrade their systems, in particular, the systems related to prior art searches and human resource development. Therefore, we are of the opinion that sharing of the work of other offices is not the remedy for improving the quality of patents rather it could in fact weaken the examination process in the developing countries. Mr Chairman as stated in the last meeting the Indian delegation is of the view that steps should be taken to build capacity among IP Offices of the developing countries to enable them to carry out their quasi-judicial functions in the best manner possible.

Mr Chairman understanding and evaluation of inventive step for considering the patentability is one of the important tasks for the patent examiners. In fact it is considered to be last and final gatekeeper of the patent system. Therefore it is pertinent to mention here that TRIPs agreement does not define either the term of inventive step or skilled person thereby providing sufficient flexibility to the members to define the level of skilled person and inventive step depending upon the technical development of the country. Therefore any attempt by understanding and analyzing the level of inventive step and person skilled in the art implemented by the member countries and formulating the norms through SCP would be fatal not only to the patent system but also the member countries specially to developing countries.

Mr Chairman it is reminded that the Indian delegation urged WIPO Secretariat in the last SCP meeting to prepare a study on the practices being adopted by companies across member states during voluntary licensing of patents and whether these are in line with the principle of competition to enable the members to make suitable policy interventions at the national level to address the issue. I hope the secretariat will take a positive note of our views and take necessary action in this regard.

Indian supports the proposal of Brazil on Exception and Limitations to Patent Rights and the DAG and African group proposal on work program on Patents and Health.

The Indian delegation extends its full cooperation and is ready to participate constructively in the committee’s discussions.

I thank you Chair.

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