Much to the ire of the Indian industry, the US and UK have raised questions on patented green technologies being given protection through compulsory licence in the country?s national manufacturing policy (NMP). According to senior government officials, the two countries have expressed concerns on the green technologies being given patent protection through compulsory licensing in India?s ambitious manufacturing plan.
The NMP proposes to setup a Technology Acquisition and Development Fund (TADF), which will have the option to approach the government for issue of a compulsory licence for a green technology that is not being provided by the patent holder at reasonable rates or is not being worked in India to meet the domestic demand in a satisfactory manner. This patented green technology is one which can substantially reduce its carbon footprint.
The Indian Patent Act has an explicit provision for compulsory licensing since its inception. It has the following grounds for grant of compulsory licence on patents after expiry of three years of its grant ? the reasonable requirements of the public with respect to the patented invention have not been satisfied, the invention is not available to public at affordable price or it has not worked in the territory of India.
?The US and UK have some issues because the policy explicitly states that such technologies should be protected. This provision exists in the Patents Act and the manufacturing policy simply states it. The policy can not be changed now,? said an official from the department of industrial policy and promotion. The policy adds that such compulsory licences will be issued only within the provisions of TRIPS and reasonable royalty will be paid to the patent holder.
The issue came up last month, when officials from the commerce and industry ministry met their counterparts in Geneva to discuss the issue of intellectual property and assumes significance as India?s first compulsory licensing order in favour of Natco Pharma has garnered a lot of attention and has been viewed as a remedy to curb abuse of exclusivity protected by IPRs.
?On occasion, a company is unable to access the latest patented green technology because of its inability to obtain a voluntary licence from the patent holder due to the cost of obtaining such voluntary licence could be a barrier and, second, the patent holder could be unwilling to part with the licence or it is not available at reasonable rates or it is not being worked in India,? the NMP adds.
In fact, the fund will also function as an autonomous patent pool and licensing agency by purchasing IP rights to inventions from patent holders.
?Any company that wants to use the IP to develop products can seek a licence from the pool against the payment of royalties. This company may then produce the product for use in specified geographical areas subject to meeting agreed quality standards. The TADF would reserve the right to license more than one company for a particular patent,? the NMP says.
The official added that companies who violate the law can be taken to the Intellectual Property Appellate Board (IPAB) and then the Supreme Court if needed.
