Saturday, August 25, 2007

Indian debate on Section 3(d) parallels arguments in the U.S.

Further to the debate in India created by the Novartis/Gleevec matter, the Business Standard wrote: the debate boils down to whether disallowing patents on incremental innovation will discourage firms from doing fresh research.

The Business Standard summarized thoughts of D. G. Shah : Section 3(d) forces firms to focus efforts on innovation and hardcore research instead of tinkering with known substances and included Shah's text:

Likewise, the threat of depriving Indians of new research products seems hollow. If they do not register their patents in India, the domestic industry has the proven capability to "reverse-engineer" the same and provide them at much lower prices. If they register the patent and do not work it, India's patent law has adequate mechanism to deal with such situations and ensure that the product is available to the needy.

More importantly, what is there in the new Section 3(d) that is causing heartburn? It creates a bar to differentiate discovery from invention. The patent applications that cannot cross the bar are treated as "trivial changes" not eligible for patents.

Curiously, talk about "discovery" and "invention" has appeared in the United States, once in the context of DNA sequences (DNA exists in nature, knowledge of it is simply a discovery, not an invention) and more recently in the stem cell wars.

Stemcellcommunity had text: Dr. Jeanne Loring, a stem cell researcher at the Burnham Institute for Medical Research, filed statements in support of the re-examination requests. "The real discovery of embryonic stem cells was by Martin Evans, Matt Kaufman, and Gail Martin in 1981, and none of these scientists considered patenting them," said Loring. "It is outrageous that WARF claimed credit for this landmark discovery nearly 15 years after it was made."

Also, Hugo Gernsback in January 1919 wrote:

"If you mean the man who really invented, in other words, originated and discovered--not merely improved what had already been invented by others, then without a shade of doubt, Nikola Tesla is the world's greatest inventor, not only at present but in all history .... His basic as well as revolutionary discoveries, for sheer audacity, have no equals in the annals of the intellectual world."

The alternative viewpoint on 3(d) in the Business Standard was given by Ajit Dangi:

Apart from stifling innovation, the current Indian patent law gives a wrong signal to the domestic as well as international investing community that India is not ready to assume its rightful place in the global economy. Some sections of the domestic lobby which argue against incremental innovation are surprisingly busy getting international patents for their incremental innovations. Dr Mashelkar Committee's Report gives an annexure which gives hundreds of such examples.

In conclusion, the Section 3(d) of the Indian patent law will not only act as a barrier for R&D and innovation, but it will also have a negative impact on public health and India's international image. If India has to move up from imitation to innovation, it needs to amend Section 3(d) of the Patent Act to allow patenting of incremental innovations.

***See also


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