The submission by the U.S. government on the interpretation of a domestic law has raised eyebrows.
“This is a public consultation, meant for domestic actors, including multinational companies and lobby groups that operate in India. It is highly inappropriate for the U.S. government to make a submission that it [Form 27] be eliminated. This is interference by a foreign government in our domestic affairs,” said Gopakumar, legal expert and member of the All India Drug Action Network (AIDAN).
India’s Office of the Controller-General of Patents, Designs and Trade Marks (CGPDTM), which falls under the Department of Industrial Policy and Promotion, Union Commerce and Industry Ministry, had invited comments from all stakeholders on Form 27 concerning the working of patents on March 1, 2018.
In 2015, a public interest litigation (PIL) petition was filed by Shamnad Basheer, Visiting Professor of Intellectual Property Law at the National Law School University of India (NLSUI), Bengaluru, in the Delhi High Court, demanding better enforcement of the Form 27 disclosure.
Form 27, under Section 146 of India’s Patents Act, 1970, mandates that all patent holders, such as pharmaceutical companies, declare how the “patent is being worked” in India — including the quantum and value of the patented product, whether it is manufactured in India or imported, and whether public requirement has been met to the fullest extent. Under the Act, any patented invention that is not commercially worked by way of local manufacturing may trigger revocation and the grant of a compulsory licence.
On March 16, Komal Kalha, senior counsel for the US PTO, submitted before the Office of the Controller-General of Patents, Designs and Trademarks, headed by O.P. Gupta, that “if the Government of India is soliciting these views with the intention of reforming the Form 27 system, the U.S. urges India to take the opportunity to significantly improve the ease of doing business, enhance predictability and certainty for innovative industries, align with international best practices, and help achieve National IP Policy, Start-up India, and other national initiatives by eliminating the requirement for patentees to regularly file Form 27 statements. At the same time, India should refrain from applying such onerous penalties to violations of this type.”
A copy of the submission has been seen by The Hindu.
Patent law experts are questioning the USPTO submission.
Brook Baker, Professor of Law at Northeastern University, Boston, said, “The ease of doing business argument is largely without merit. The USPTO has long been an agent of pressure by direct interference in India’s intellectual property policy as evidenced by its submission concerning the Form 27 dispute.”
Source The Hindu