Statement by India at the 18th session of WIPO Standing Committee on the Law of Patent (SCP) delivered by Shri Chaitanya Prasad, Comptroller General of Patents on May 21, 2012

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 Mr Chairman,

 At the outset, I would like to compliment the secretariat of WIPO for its outstanding efforts in preparing the various documents and making them available on time to the members for discussion in this session of the WIPO Standing Committee on the law of Patents. The delegation also expresses its appreciation to secretariat for compiling the work related to projects and activities on patents and health by WIPO, WHO and WTO. The delegation is also happy to note that the Secretariat provided a document listing the various WIPO activities in the area of technology transfer as requested in the seventeenth SCP in particular, the document relating to “Patents and transfer of technology: Examples and experiences”. The delegation is confident that these documents will be useful and will provide a good basis for deliberations in the next few days. The Indian delegation looks forward to participating in these important meetings.

Mr Chairman, the Indian delegation would like to reaffirm its views expressed in the last SCP meeting, in particular, on the issues related to transfer of technology, opposition system, Client-Attorney privileges, Quality of Patents, International Patent System and Patents and Health. However, the delegation would like to   emphasize further that, ever-greening policies for patenting incremental innovations without substantial improvement would have adverse impact on delivery of healthcare services. The Indian Patents Act provides that unless the invention shows enhancement of the known efficacy by way of significant differences in the properties apart from meeting independently the requirement of patentability, it cannot be considered for protection. Furthermore, the effective utilisation of the flexibilities afforded under TRIPS can also greatly contribute to providing access to medicines at reasonably affordable prices to the poor of the world. In this context, we are happy to note that the Secretariat is organizing a conference on Compulsory License, price control and access to patented products. However the Indian delegation feels that it is essential that a study be conducted by WIPO documenting the Compulsory License practices among its member States. In this context we would like the study to focus on the manner in which Article 30, 31 and Article 44.2 of TRIPS have been implemented by the member States. 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 patent prosecution highway is not the remedy for improving the quality of patents rather it could in fact weaken the examination process in the developing countries. 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, in our considered view, there should be much more onus on the applicants for patents to disclose more and more prior art suo moto. They should also be expected to disclose the search reports, findings related to patentability and the outcome of their corresponding foreign applications to patent offices if their applications are rejected by any patent office. Article 29 of the TRIPS Agreement clearly mandates this disclosure including providing information concerning the applicant’s corresponding foreign applications and grants. The Indian Patent law provides for such provisions requiring the applicants to submit such information and failure to do so becomes the ground for opposition as well as revocation.

Mr Chairman, we note the revision in document no. SCP 18/6 on Client-Attorney privilege concerning the confidentiality of communication between clients and patent advisors in certain jurisdiction particularly relating to foreign patent advisors. However, we note with concern  the proposal made by  the International Chamber of Commerce (ICC) on respecting the privileges of other countries. The India delegation has time and again reaffirmed its views in meetings that such a move imposes extra jurisdictional powers which is a clear violation of the Sovereign authority of a country and is not recognized by either the TRIPS Agreement or the Paris Convention. It is reiterated that in the Indian Patent Act, there is no provision for a client attorney privilege and under  the lawIndian Citizens who are only science graduates and qualify the Patent Agent Examination can  practice as patent agent even without a law degree.

In the end, we express satisfaction on the progress made by SCP in bringing out reasonable studies giving a clear picture on the existing situation across countries on the subjects under consideration of the present SCP. However, greater emphasis is required to ensure that we come out with a mechanism so that the developing countries and the least developed countries are benefitted. In this context the Indian delegation is of the view that the WIPO Secretariat should prepare a study on the practices being adopted during voluntary licensing of patents and whether these are in line with the principle of competition. We are sure that this study will enrich the body of literature on the licensing practices adopted by companies across member states, which in turn will enable suitable policy interventions at the national level to address the issue.

The Indian delegation looks forward to further deliberations on the issues in details. I am sure the deliberations of this committee will be very fruitful, productive and meaningful. 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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